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Legal Representation and Rape Trials

Alok Prasanna Kumar (alok.prasanna@vidhilegalpolicy.in) is senior resident fellow at the Vidhi Centre for Legal Policy, and is based in Bengaluru.

The right of all accused to have representation in courts is seriously under threat in India not just from the government, but from lawyers and on occasion from civil society itself, especially in rape cases. This leads to serious injustice and sometimes results in deprivation of life and liberty without the due process of law. However, even for the conscientious lawyer, a sexual assault case poses ethical and mental health challenges that have to be navigated with little institutional support.

The recent murder of five-year-old Pradyuman Thakur, on the premises of Ryan International School, Gurugram—apart from exposing the absence of safety in India’s expensive private schools—has also, once again, exposed the shoddiness of the criminal justice system. The Haryana police framed Ashok Kumar, a bus driver, for the offence and even purported to get a “confession” from him (Basu 2017).

It was only the sustained pressure from the victim’s family that saw the case being transferred from the Haryana police to the Central Bureau of Investigation, who then nailed an older student of Ryan International School as an accused in the case (Business Line 2017).

Compounding the matter further was a “resolution” passed by members of the District Bar Association of Gurugram refusing to appear for Ashok Kumar in the case. After the matter went up to the Supreme Court, the court “advised” them to withdraw the resolution, and reports suggest that they have done so (Live Law 2017).

That said, this case is yet another grotesque example of the numerous failings of the criminal justice system, and while the final outcome is still awaited, the fact remains that yet another innocent man was framed for an offence he did not commit, suffering imprisonment and torture, and being denied legal representation when he most needed it (Satish 2017).

Such boycotts by the bar have become all too common in India of late. While the wider bar has covered itself in ­disgrace, individual lawyers nonetheless have taken up such “unpopular cases,” sometimes without remuneration. Mention must be made here of ­senior ­advocate Raju Ramachandran and advocate Gaurav Agrawal for having argued Ajmal Kasab’s case in the Supreme Court and refusing the remuneration awarded to them by the Supreme Court (Hindu 2012).

Such examples are few and far between. The trend seems to be for bar associations and even members of civil society to make grandiose statements about refusing to represent a certain class of litigant.This not only affects the fairness of the trial insofar as the accused is concerned, it also means that the victim does not see justice done. The point of a criminal trial is not to find a scapegoat, but to ensure that the truth comes out and justice is done in accordance with the law and facts.

The precise legal obligations of a lawyer towards the client are unambiguous. The Bar Council of India’s “Rules on an Advocate’s Duty towards the Client” starts with the categorical statement that an advocate is bound to accept any brief in the courts and tribunals before which he intends to practise, and a refusal can only be justified in special circumstances (A S Mohammed Rafi v State of Tamil Nadu 2011; K Vijayalakshmi v State of Andhra Pradesh 2013).

If a core principle of the rule of law is that no one shall be deprived of their life and liberty without following the procedure established by law, it follows that everyone has a right to legal representation before a court of law. Just as the government cannot deprive an accused of legal representation before a court of law, so also a bar association or a group of lawyers cannot simply refuse to represent a certain class of accused in a court of law. Yet, we see the continued spectacle of such “boycotts” depriving the accused and others of representation.

That said, the principled lawyer who wishes to take up cases of sexual assault also realises soon enough that representing the accused, or even victims, in cases of sexual assault and violence is a difficult task. A conscientious lawyer who takes up such cases not only has to deal with ethical and moral dilemmas, but when they are appearing for the victims regularly, such cases also have an impact on one’s mental health.

Reality of Rape Trials

The profile of sexual assault cases in India is far more complex than the somewhat simplistic image presented in the mass media. Nearly, 95% of the accused are known to the victims (Business Standard 2017), and a significantly large number of cases are the so-called “breach of promise to marry” cases (Shrinivasan 2014). It is also not unknown for parents of women who have eloped to marry outside caste and religious boundaries to slap rape and kidnapping charges on the men in a bid to break up the marriage (Shrinivasan 2014).

At all times, conscientious lawyers walk a careful line between representing their clients and being officers of the court. A lawyer is not just the mouthpiece of her client, but neither is she the judge herself. She must balance her duty to the client with the duty to the court. There cannot be hard and fast rules when it comes to such situations. All that lawyers possess to guide them is good sense and experience, not to mention the requirements of common decency and honesty.

Yet, lawyers do cross the line all the time. In sexual assault cases, victims are forced to relive their trauma in a hectoring and unfriendly manner. Their character is questioned even though the Evidence Act, 1872 has been amended to clarify that the past sexual conduct of a rape victim is irrelevant to a rape trial. Efforts are made to mislead the court as to the non-consensual nature of the act (Poonam 2017). It does not help that the state bar councils or the Bar Council of India have almost never hauled up a lawyer for misconduct of this type in a court room. They have not even exercised their rule-making power to lay down norms regarding the behaviour of advocates in such sensitive cases. It creates a situation best described by the poet, W B Yeats in “The Second Coming” (The Collected Poems of W B Yeats, 1989):

The best lack all conviction while the worst Are full of passionate intensity

Vicarious Trauma

While concerns over unethical handling of rape cases have been aired for a while now, another aspect of the matter that has garnered attention recently is vicarious trauma. Vicarious traumatisation is said to happen when someone who works regularly with trauma victims experiences severe mental health complications as a result of empathising with the trauma victims with whom they are working (Kadambi and Truscott 2004). While this phenomenon has been well recognised in professionals who work with trauma victims, it is only in the previous decade that research identified this concern for legal professionals who dealt with victims of sexual assault, domestic violence and other such cases on a regular basis (Levin and Greisberg 2003).

As one recent account showed, the effects of vicarious trauma can be debilitating (Guha 2017). The author, an advocate who worked exclusively with children who are victims of sexual abuse, notes that nothing in her legal training prepared her for the intense nature of the work, leading her to suffer the symptoms of vicarious trauma. In fact, as she points out, the law’s emphasis on facts and rationality, at the cost of understanding one’s emotions and empathy, may have only exacerbated her symptoms in the case. There is little awareness, let alone acknowledgement, in the wider legal community about vicarious traumatisation, and remedy or some form of redress seems distant.

In speaking of the criminal justice system, it is quite easy to think of the system in the abstract and ignore the women and men who make the system what it is. In the ongoing conversation on sexual assault in India, while a lot of attention is justifiably given to the victims, the perpetrators, the decision-makers, and the enablers, perhaps not enough is given to those who are a part of the system that is supposed to ensure that justice is done in the context of handling such cases. While expecting them to handle such cases with maximum empathy, care, and concern, institutions expect them to do so without any real support or guidance on what such empathy, care, or concern is supposed to mean.

References

A S Mohammed Rafi v State of Tamil Nadu (2011): SCC, SC, 1, p 688.

Basu, Snigdha (2017): “Bus Conductor Who Says He Was Framed for Pradyuman’s Murder Seeks Bail,” 10 November, NDTV, viewed on 18 December 2017, https://www.ndtv.com/gurgaon-news/bus-conductor-who-says-he-was-framed-for-pradyumans-murder-seeks-bail-1773725.

Business Standard (2017): “In Nearly 95% Rape Cases, Accused Is Known to Victim, Reveals NCRB Data,” 4 December, viewed on 18 December 2017, http://www.business-standard.com/article/current-affairs/in-nearly-95-rape-cases-accused-is-known-to-victim-reveals-ncrb-data-117120400632_1.html.

BusinessLine (2017): “Haryana Govt Orders CBI Probe in Schoolboy Murder Case,” viewed on 18 December 2017, http://www.thehindubusinessline.com/news/education/haryana-govt-orders-cbi-probe-in-schoolboy-murder-case/article9861713.ece.

Guha, Priyangee (2017): “Dealing with Vicarious Trauma: What Law School Did Not Teach Me About Working on Cases of Sexual Violence,” Medium, 12 December, viewed on 18 December 2017, https://medium.com/skin-stories/dealing-with-vicarious-trauma-what-law-school-did-not-teach-me-about-working-on-cases-of-sexual-dd37c34b0f80.

Hindu (2012): “Amicus Raju Declines Fee in Kasab Case,” 4 October, viewed on 18 December 2017, http://www.thehindu.com/news/national/Amicus-Raju-declines-fee-in-Kasab-case/article12543689.ece.

K Vijayalakshmi v State of Andhra Pradesh (2013): SCC, SC, 5, p 489.

Kadambi, Michaela A and Derek Truscott (2004): “Vicarious Trauma among Therapists Working with Sexual Violence, Cancer and General Practice,” Canadian Journal of Counselling,
Vol 38, No 4, pp 260–76, viewed on 18 December 2017, http://cjc-rcc.ucalgary.ca/cjc/index.php/rcc/article/view/261.

Levin, Andrew P and Scott Greisberg (2003): “Vicarious Trauma in Attorneys,” Pace Law Review, Vol 24, No 1, pp 245–52, viewed on
18 December 2017, http://digitalcommons.pace.edu/plr/vol24/iss1/11.

Live Law (2017): “Do Not Obstruct Ryan School Murder Trial: SC to Gurgaon Bar,” 18 September, viewed on 18 December 2017, http://www.livelaw.in/not-obstruct-ryan-school-murder-trial-sc-gurgaon-bar/.

Poonam, Snigdha (2017): “‘A Case Is a Case’: For Some Lawyers, Defending Rape Is a Business,” Hindustan Times, 16 December, viewed on 18 December 2017, http://www.hindustantimes.com/delhi-news/a-case-is-a-case-for-some-
lawyers-defending-rape-is-business-with-ethical-dilemmas/story-bTa3mAM5bQNd05di7pkYWP.html
.

Satish, Mrinal (2017): “Lawyers Boycotting Accused in Heinous Crimes Violate the Rights of the Victim As Well,” Print, 19 September, viewed on 18 December 2017, https://theprint.in/2017/09/19/lawyers-boycotting-accused-violate-rights/.

Shrinivasan, Rukmini (2014): “The Many Shades of Rape Cases in Delhi,” Hindu, 29 July, viewed on 18 December 2017, http://www.thehindu.com/data/the-many-shades-of-rape-cases-in-delhi/article6261042.ece.

Updated On : 27th Dec, 2017

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