Everyone deserves a lawyer - even those accused in Delhi gangrape case

You can be outraged at rape, disgusted by those accused of the crimes and a proud champion of equality and women's rights. But that doesn't mean you have to undermine civil society to do so.

With the legal case now being made, gradually, against the Delhi rape suspects, it is vital the justice system and society as a whole do whatever necessary to ensure fair trials.

The protests last week by lawyers boycotting defending the suspects was childish, at best, and fundamentally unprofessional.

The lawyers at the Saket court complex have opposed anyone defending the accused in the horrific gangrape case. Naresh Sharma/ Firstpost

To claim you're too "emotionally attached" means you can pick and choose who is innocent and who is guilty - a matter for judges and juries, not lawyers.

The legal profession should be bending over backwards to defend the men, not only to avoid subsequent appeals based on insufficient representation, but also to maximise confidence in the justice system as a whole.

The Saket Bar Association's president Rajpal Kasana appealed to the body's thousands of members to refrain from representing the accused. As reported in the Legally India blog, another local bar member, Sanjay Kumar, told Agence France-Presse: “We have decided that no lawyer will stand up to defend them. It would be immoral to defend the case.”

Lawyers of the association would "stay away” to ensure “speedy justice”, said the report.

Efficiency is good, but the idea of "speedy justice" should make everyone nervous - rushing cases is how innocent people go to jail and guilty people get away with their crime.

Kasana said the accused can have legal aid representation, but under his own logic, you could deny that too.

And he wouldn't be alone. A large chunk of America's right-wing media over the past decade has attacked lawyers representing those held at Guantanamo Bay facing military tribunals for alleged terrorist activities. They argued it was traitorous for Americans to defend those charged with plotting to kill Americans.

Part of the problem is the word "defend". It implies that the lawyer agrees with the actions of an accused, which in turn implies the accused is presumed guilty.

Lawyers don't have to believe an individual or cause to defend or represent them in law. The point of lawyers is to ensure the system has balance.

What if I'm innocent of a crime but a lawyer decides I shouldn't have representation because he or she thinks I'm guilty? Or he or she fears protests outside their own home? Or maybe decides the accused has the wrong skin colour or religion? It becomes a very slippery slope when you decide that certain people can have fair trails and certain people can not.

The men accused of the horrible gang rape might be guilty - with the case now in front of the courts, it is for the individuals to plead guilty or be proven guilty based on available evidence. That's the justice system. If you want to get rid of a system that presumes innocence, then you should be honest that that's what you want.

For years, the press in the UK has prattled on about how the justice system is weighted towards criminals. It's easy for that perception to be created when victims are questioned so vigorously about their evidence. An accused individual may, yes, be guilty. But the moment a justice system PRESUMES that, then you get miscarriages of justice, and innocent people get executed or face years of incarceration for crimes they didn't commit.

It is one thing for lawyers to have private moral objections to defending those accused of rape. But for ALL lawyers to say they can't represent individuals because of the nature of the crime presumes guilt and tilts the scales of justice away from any measure of equilibrium.

Part of the problem of rape and violence against women in India, and around the world, is that victims lack confidence in the justice system.

They fear the system is rigged against them, designed to humiliate and ridicule them further and in public, and as is often said, "rape them again". But a better justice system does not come from refusing to represent those accused of the crime. That simply undermines the system in its entirety, and should not instil any confidence in justice.

As the legal case against the rape accused continues, we must all ensure it is as fair as possible, as well as efficient and open.

In his statement last week, Rajpal Kasana, said: "We are not taking this case on the grounds of humanity."

No. Humanity and compassion for the victim does not imply or require a need for undermining the justice system. It is fundamentally inhuman to deny anyone the fairest trial possible, no matter how inhuman the alleged crimes. In this case, lawyers need to remind themselves what being human means, and whether they actually want to defend humanity.

Updated Date: Jan 07, 2013 17:59 PM

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