Reform mindset

The horrific rape of the young Delhi girl in a bus has evoked extreme reactions ranging from cries for mandatory death penalty, public hanging and castration of the rape convicts. On the other hand, there is so-called spiritual leader Asaram Bapu's preposterous statement that the victim could have avoided the sexual assault if she had called her attackers her brothers and fallen at their feet pleading for mercy. Some have suggested that the victim should not have travelled by a bus which had no other female passengers. Weird solutions have been put forward to combat the menace of rape, such as not wearing miniskirts or putting on lipstick or venturing out at night after 9 pm with a boy friend especially after a visit to a pub. Law reforms, judicial reforms and police reforms are certainly required. What is really required is a qualitative change of mindset across the board, to change the attitudes in which men relate to women. A shocking instance is where a trial court in Delhi ruled that "wife beating is a normal facet of married life". Chief Justice of India Altamas Kabir termed this ruling as perverse and stressed that this mindset needs to be changed and rightly observed that "crime against women in society can be curbed only when the authorities are sensitised towards women's problems".

Perennial fallacy

The resolution passed by a City Bar Association calling upon lawyers to refrain from appearing for the defence of the accused in the rape case betrays gross misconception about the role and obligation of a lawyer. Article 21 of the Constitution guarantees fair trial to every person. Denial of legal representation is tantamount to denial of fair trial. Constitutional guarantees cannot be jettisoned because of the heinousness of a crime. A lawyer who appears for an accused does not subscribe to the innocence of his client. In fact, it is improper and unprofessional for a lawyer to say that he is convinced about the innocence of his client. It is not the function of a lawyer to judge the guilt or innocence of an accused. That is the function of the court. The lawyer's function is to take all legal defences and pleas which in law are available to an accused person and which the accused could have taken if he had the requisite legal training and competence. This is a well recognised principle. The great fearless advocate Thomas Erskine who appeared for Thomas Paine, who was charged with serious offences against the Crown, was severely criticised for his defence of Paine. Erskine's reply is memorable. "If the advocate refuses to defend, from what he may think of the charge or of the defence, he assumes the character of the judge; nay, he assumes it before the hour of judgment. I will for ever, at all hazards, assert the dignity, independence, and integrity of the English Bar; without which, impartial justice can have no existence". Erskine's example should be emulated in all democratic countries committed to dispensation of impartial justice as in the case of our country.

No equality in commission of crimes

Owaisi has been charged inter alia under Section 153-A of the IPC with the offence of making inflammatory speeches which are prejudicial to maintenance of communal harmony. Owaisi will surely contest the charge and put forth his legal defences on merits. Owaisi's friends and supporters who have been vocal in his defence constantly mention that similar charges have not been slapped on Pravin Togadia and others who have allegedly made more inflammatory speeches and therefore Owaisi is being discriminated against. Non-prosecution of others is no defence if Owaisi has in fact contravened Section 153-A. Our Supreme Court has rejected a similar argument put forward by smugglers who were facing prosecution that there were other smugglers who were not prosecuted and therefore there was discrimination. According to our Supreme Court, the mandate of equality does not apply to commission of crimes. Owaisi will succeed or fail on the facts of his own case irrespective of non-prosecution of alleged similar offenders.

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