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  Matthew Scott: much of the Indian legal profession has shown cowardice and hypocrisy

A fair trial depends on both prosecution and defence testing the evidence: there must be competent legal representation

English lawyers are often ready to praise the courage and dedication of their colleagues working in less congenial jurisdictions. All of us have been humbled by the courage shown, for example, by Zimbabwean lawyers such as Beatrice Mtetwa, or by the fearless Gao Zhisheng, the dissident lawyer who has been tortured and imprisoned by the Chinese state. Sadly, in the aftermath of the horrific rape and murder of the Indian medical student, much of the Indian legal profession has shown nothing but cowardice, pusillanimity and hypocrisy.

Even in this country one cannot help but feel the atmosphere of a national, indeed international, lynch mob whose blood lust will not be sated until the six young men currently accused of the rape and murder are dead, preferably within weeks. In a demonstration of how little human nature has changed since crowds gathered at Tyburn to watch the torture and hanging of traitors, online commentators are calling for the suspects, including the 17-year-old, to be publicly castrated, raped and disembowelled before being hanged. It is hardly an atmosphere that is conducive to the calm and balanced consideration of the evidence. All that now stands between them being strangled to death on the gallows is the hope of a fair trial. One would have thought that in democratic India, with its proud common law traditions and innumerable distinguished advocates, that they would at least be assured of the very best legal representation. But it seems that one would be wrong.

All 2,500 lawyers working at the South Delhi court where the accused are due to be tried have refused to represent any of those charged. According to The Times of India, Sanjay Kumar, a spokesman for the lawyers concerned and a member of the Saket district bar council, defends his action in this way: “We have decided that no lawyer will stand up to defend the rape accused as it would be immoral to defend the case.”

The spiritual father of modern India was of course Mahatma Gandhi, who among his other achievements was a distinguished barrister of the Inner Temple. It is inconceivable that he would have declined to represent anyone accused of a capital offence, so it is particularly depressing that the legal pygmies who now practise law in South Delhi should be either utterly ignorant of their professional duty, or worse still scared of the bad publicity that might ensue from representing the unpopular. Perhaps the lawyers are scared for their safety, although Mr Kumar has not suggested this. Unlike the brave lawyers of China or Zimbabwe they face no threat of torture and imprisonment from the Government.

The very first sentence of Rule 1 of the Bar Council of India’s code of conduct for an “Advocate’s Duty Towards The Client” states: “An advocate is bound to accept any brief in the courts or tribunals or before any other authority in or before which he proposes to practise.” It is, of course, a fundamental rule for any advocate. Presumably its rationale was taught to Mr Kumar during his legal education, but as he seems to have forgotten it. Let me explain why it matters.

A fair trial depends on both prosecution and defence testing the evidence to the utmost. To do so they must have competent legal representation. What chance can any of the accused, for example, 19-year-old fruit vendor Pavan Gupta, or 24-year-old bus-washer Akshay Singh, have of defending themselves on their own? How on earth can it be “immoral” — as Mr Kumar asserts — to test the evidence that the State says proves their guilt? The immorality lies in Mr Kumar’s assumption that the men are guilty before any trial takes place, before any of the evidence has been tested and before any of the men has had a chance to defend himself from his accusers. That the evidence may appear overwhelming is nothing to the point. The strongest-looking cases can sometimes amount to nothing once they are properly tested. Even on the assumption (which of course may not be correct) that all six men had something to do with the attack, there is a perfectly reasonable possibility that some or all may have a defence to murder. Even if they are guilty of murder, there are powerful arguments as to why they should not be hanged.

The men will not be entirely without representation. Even though most of the South Delhi Bar has lost its ethical compass, two brave lawyers have offered to defend three of the accused and some sort of government lawyer may be appointed to do his or her best for the others. It may be, though there is every reason to doubt it, that a fair trial will take place. But if that happens it will be in spite of, and not because of the actions of Mr Kumar and his eminent colleagues. Their stance has made them a disgrace to their profession, and if the Bar Council of India has any moral standing at all one would hope that it will take the strongest possible action against them. As far as Mr Kumar is concerned, he may just about retain sufficient moral authority to start a new career, perhaps as a bus-washer.

Matthew Scott is a barrister at Pump Court Chambers