The Verma Committee Follow-up: A Fair Trial for the Accused

[Every time a crime that shocks the public conscience is committed, lawyers are quick to respond by taking a collective decision not to defend the accused. The unseemly public discourse in this context which began in the aftermath of the Mumbai terror attack was repeated during the debate pursuant to the arrest of the persons alleged to have gang-raped the 23 year old medical student in Delhi late last years.  Gautam Bhatia explores the implications of such decisions by lawyers and bar councils and how it reflects on the nature of our legal profession and country on the whole]

In the wake of the shocking Delhi gangrape, different organizations have chosen to respond to the incident in different ways. One, in particular, stands out: the Saket Bar Council’s [SBC] refusal to defend the accused. While taking nothing away from the magnitude of the event and the seriousness of the offence, I believe that the SBC’s decision is not only flawed in principle and an ethical mistake, but also sets an extremely dangerous precedent for the practice of law in India.

Let us examine the reasons put forward by the SBC. Its vice-president, Arun Rathee, stated that the accused “have committed a heinous crime”, and that “it would be immoral to defend the case.” Sanjay Kumar, a member of the SBC, added that SBC’s lawyers were staying away to ensure “speedy justice.” Four possible arguments can be constructed from these two statements. First, that the guilt of the accused is so blindingly obvious that no defence is called for; secondly, that it would be “immoral” for a lawyer to defend a person he believes to be guilty of a “heinous crime”; thirdly, that it would be immoral because it goes against the prevailing mood of the nation; and fourthly, the more speedily the case is disposed off, the more efficient it would be. All four arguments are extremely problematic.

To commence with the first two arguments: for better or for worse, the bedrock of Indian law is the common law, adversarial legal system. Numerous critics have pointed out the deficiencies of such a system – and there are many. Nevertheless, I believe it to be beyond cavil that those who voluntarily choose to join it do so on the condition of accepting it as a whole, flaws and all; and while they may consciously work towards its reform, it is pellucidly clear that they have a responsibility not to undermine it through their participation.

Now, the raison d’être of the adversarial system is this: the question of the guilt or innocence of the accused in a criminal case lies within the exclusive domain of the judge, who must decide the case on the basis of the evidence presented by the two opposed parties. Until the time that the judge pronounces his verdict, and the verdict is “guilty”, an accused is – and must be – presumed innocent. In particular, it is not the lawyer’s province to decide whether or not a potential client is guilty or innocent; his sole task is to represent his client, honestly and to the best of his ability, and leave decision-making to the judge. In contrast to the inquisitorial system of civil law countries, the survival of the adversarial system depends upon maintaining this distinction between the role of the judge and the role of the lawyer. Two corollaries follow: first, as Justice Katju recently pointed out, in the context of this very case – that every accused has a right to be defended; and secondly, it is unethical for a lawyer to ground his decision to accept or reject a brief on the ground of his personal determination of guilt or innocence. I do not argue, of course, that a lawyer is obligated to accept every brief that comes his way: a lack of expertise and a packed schedule are only two of many legitimate reasons to refuse a case. I do argue, however, that this reason is unethical because antithetical to the spirit of the adversarial system to which the lawyer, ex hypothesi, is morally committed.

The third reason ignores another ideal to which we, as a nation, are committed: that of the rule of law. As the history of the evolution of legal systems will demonstrate, the idea of government by law evolved out of an awareness that the opposite – government by men – is subject to arbitrariness, caprice and unfairness. Hence, one of the hallmarks of the rule of law is generality: laws are designed to be applied to situation-types, and not individual cases. Exceptions are rife, but the logic of their existence is internal to the law, not external. Public outcry or emotion, therefore, provides no ground to depart from one of the basic features of the adversarial system, that is, the irrelevance of subjective determinations of guilt to the right of the accused to have, and responsibility of the lawyer to provide, a defence.

The last argument is perhaps the weakest. An matter of principle – that is, the right of the accused to be defended – is ex hypothesi not subject to being overruled by considerations of efficiency. If efficiency was any kind of ground, then one could simply do away with the requirement of allowing both parties to be heard and to provide evidence. It would be even more efficient if the judge was permitted to decide a case based on his pre-hearing intuition. We do not accept that, however, because what we care about in law is arriving at the correct decision, not the most efficient decision. And the adversarial legal system presupposes, beyond argument, that the adversarial procedure is the best method of arriving at the truth.

 None of the arguments provided by the SBC, therefore, are sound. In addition, the ripple effect of such a move could have serious consequences. What is true today for those accused of a brutal gangrape-and-murder could be true tomorrow for particularly sadistic murders; the day after tomorrow, for child-abuse; and sometime in the future, for despised political speech that questions the territorial integrity of India, or that in some other way is deemed – by the SBC or an equivalent body, to be seditious, damaging or otherwise distasteful. The argument is simply: if lawyers decide whether or not to take a case on the basis of their personal judgment on its merits, our adversarial system cannot survive. One may not consider that a loss worth mourning; but that is a different matter entirely.

The SBC Resolution deserves to be strongly criticized, and in no uncertain terms. It is damaging for the rights of the accused, damaging for the legal profession, and above all else, damaging for the rule of law.