ONTD Political

Why Justice May Be Delayed (in New Delhi Case)

4:47 pm - 01/04/2013
Why Justice May Be Delayed Refusal of legal aid to the accused may throw a spanner in this 'open-and-shut-case'

The clamour for speedy justice in the rape and murder case of a 23-year-old paramedical student may come up short against unforeseen delays, with overzealous lawyers refusing to represent the six accused in court.

The report of bone density tests at AIIMS in the case of one of the accused, to determine whether he is a juvenile, is expected by January 7. Though Delhi Police has prepared the chargesheet against the six in record time of two weeks, the absence of legal representation will benefit the accused and may vitiate the trial even at a later stage, according to legal experts. The police claim they have a watertight case, with 30 witnesses and charges against the accused running into more than 1,000 pages. An "open-and-shut case" is how they describe it. The trial is slated to be held in a fasttrack court on a day-to-day basis.

However, a resolution adopted by the Saket District Courts Bar Association on January 2, refusing legal aid to the accused, may throw a spanner in the works. Legal experts are beginning to see shades of the Ajmal Kasab case, where the accused in the 26/11 terrorist attack was initially refused legal aid in Mumbai, delaying the trial. Senior lawyer Raju Ramachandra, appointed amicus curiae byt the Supreme Cuort in the Kasab case, says the denial of their constitutional right to a fair trial may ultimately work tot he benefit of the gang-rape accused.

Not just now, even at a later stage of the  the accused are able to show that they did not get adequate legal representation, the trial can get vitiated. Ramachandran cites the case of Pakistani national Mohammad Hussain, an accused in a 1997 bomb blast case in a bus in west Delhi, which killed four people. Awarded the death penalty by the trial court and the Delhi High Court, he will now have a fresh trial after 15 years as the Supreme Court in September 2012 ruled the earlier trial was vitiated by procedural lapses. Facing a similar situation, lawyers had refused to represent him. The court-appointed lawyer did not appear in several hearings at the beginning of the trial and it was considered a case of inadequate legal representation.

"Lawyers should not take a moral stand on who should be represented," says Ramachandran. Whose interests are the lawyers serving in the gangrape case by adopting such resolutions, he questions. Lawyer Abbas Kazmi, who represented Kasab in the trial court, feels the attitude of the bar association will unnecessarily delay the trial. "Even the killers of late prime ministers Indira Gandhi and Rajiv Gandhi were represented by the best lawyers of the country. Lawyers have to do their professional duty. They cannot be judges," says Kazmi.

Senior Supreme Court advocate KTS Tulsi says it is up to the sessions judge now to appoint a lawyer from the list of legal aid counsel to represent the gang-rape accused for a speedy trial. One of the accused in the case
is believed to be a juvenile. Tulsi says he cannot be tried in the district court along with the other accused. "He cannot be treated on a par with the other accused," he explains, adding that as per the Juvenile Justice (Care and Protection of Children) Act, 2000, he could get a maximum of three years in a remand home. The other five accused, charged with rape and murder, could be given the death penalty.

Among other things, protesters have been demanding stricter rape laws and a review of the Juvenile Justice Act to lower the cut-off age from 18. A three-member committee headed by former Chief Justice of India (CJI) J.S. Verma to suggest changes in the law dealing with sexual crimes received over 18,000 suggestions in eight days. More are expected by the January 5 deadline.

The committee's other members are former Chief Justice of Himachal Pradesh Leila Seth and former Solicitor General of India Gopal Subramaniam. A team of 10 young lawyers would help sift through email the committee receives before it has to submit in a month's time recommendations that will form the basis of a new rape law. Besides legal experts, the committee has invited suggestions from authors, women's groups and human rights organisations. A total of 15 women's organisations, including Dalit Mahila Adhikar Manch, National Federation of Indian Women, All India Progressive Women's Association (AIPWA) and Young Women's Christian Association, have finalised drafts to be sent to the committee.

According to Kavita Krishnan, secretary of AIPWA, its recommendations focus primarily on changes needed in existing laws like the Criminal Law Amendment Bill of 2012. "The biggest problem with this law is that it makes rape gender-neutral. We want it to be gender-specific to only cover crimes against women. The definition of rape should be expanded to cover other acts of violence against women such as acid throwing, public sexual humiliation or even stalking," she says. The organisations have also suggested changes to the Sexual Harassment Bill which has a clause whereby a woman who makes a false complaint can be penalised. "No other law has a false complaint clause. Having this clause assumes a woman has more of a tendency to lie than a man," she says.

One of the petitions sent to the committee, an open letter by author Namita Bhandare, has recommended several measures, including maximum sentence, immediate passage of pending Bills to protect women and national-level consultations on how to tackle crime against women. Bhandare's letter, circulated as a petition on the website Change.org, asks the President and CJI to help implement these measures on priority.

Supreme Court advocate Karuna Nundy, one of the lawyers invited by the committee to give suggestions, says "swift and certain justice, not extreme sentencing" is required. "We need more courts, more judges, even more police." She points out there is too much emphasis on heavy sentencing. "When you hear about 'tough' laws, you've got a red herring. It usually refers only to sentencing. In the entire cycle of crime reporting, detection, prosecution, conviction and sentencing, the last is the easiest in dealing with rape. It is the others that are difficult and need to be tackled."

Whatever changes are made in the law, the gang-rape accused will be tried according to present laws. No law can be enforced retrospectively. The changes would apply to sexual offences of the future and, eventually, serve as a stronger deterrent.
chaya 4th-Jan-2013 11:27 pm (UTC)
Please add the sexual assault and murder tags, and provide the full article title in the body of the post (as it doesn't fit in the subject line)
noneko 4th-Jan-2013 11:50 pm (UTC)
Good now?
chaya 5th-Jan-2013 04:07 am (UTC)
Yes, ty for the fast fix!
fishphile 5th-Jan-2013 12:37 am (UTC)
This whole situation is sad and infuriating.

Supreme Court advocate Karuna Nundy, one of the lawyers invited by the committee to give suggestions, says "swift and certain justice, not extreme sentencing" is required. "We need more courts, more judges, even more police."

I don't know anything about the legal system in India, but an article I read earlier on yahoo! mentioned the police arguing over jurisdiction while the two victims were asking for help. If that's true then simply adding more police won't help anything.

I truly hope they figure out a way for justice and to protect people in the future.
tabaqui 5th-Jan-2013 12:59 am (UTC)
Well, that friggin' sucks.

And why don't they know if the one guy is a minor or not? I'm confused. He doesn't know when he was born?
msp_hacker 5th-Jan-2013 01:19 am (UTC)
I guess not. If no one registered the birth, the only one who would know for sure is the bio-mom, who I am guessing is out of the picture.
tabaqui 5th-Jan-2013 01:23 am (UTC)
Ah. I imagine he's desperate to prove his status as non-adult, though personally - i don't think he should get a pass.
the_physicist 5th-Jan-2013 02:59 am (UTC)
i can see why no one would want to represent them. i hope it doesn't cause problems in getting them a water tight conviction though.
mandragora1 5th-Jan-2013 09:04 am (UTC)
As a former criminal defence lawyer (who now works on the other side) I really can't see why no one would want to represent them. It's vital in the interests of justice that accused persons have good legal representation. That includes people who have committed the most horrendous crimes and if you act for them your duty is to do your best for your client, regardless of your personal feelings on the matter.

I can remember a colleague of mine (who's now a Crown Prosecutor) being in tears when a client of hers was acquitted (due to a prosecution screw up) because a dangerous individual was still at loose to abuse other children. But she had to represent him to the best of her ability as that was her professional duty as his lawyer.

And in fact it's part of the prosecution duty (in England & Wales, at least, but Indian law is based on the common law, which originated in England & Wales) to consider whether to decline to continue with a prosecution in circumstances where the defendant is not legally represented, in the interests of a fair trial.
tilmon 5th-Jan-2013 03:23 am (UTC)
And this is exactly why, in the most heinous cases, a good defense lawyer should be appointed immediately, on order of the state. And people need to get it through their thick skulls that a real defense has to be mounted in even the most disgusting cases, or else there is no justice system at all.

I hope, for the sake of speedy justice, lawyers will be quickly appointed and will do their best on behalf of their clients.
apostle_of_eris 5th-Jan-2013 05:38 am (UTC)
We need the courts to work.
In the same spirit in which John Adams defended the soldiers accused in the Boston Massacre, I will contribute to a defense lawyer fund.
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