Dear brother and sister advocates,
I write this to you about an issue close to our hearts. All of us have, at some time or the other, been involved in either prosecuting a rape accused or defending one. If we go by old ethical norms, a lawyer is supposed to represent his client no matter what. This has resulted in some of us doing things that make us uncomfortable. For example, a rape survivor may be intimidated in court during cross-examination. The accused may pay off the police to spoil the case. The accused may get a fake DNA test result showing his sperm didn’t correspond to that found at the crime site. Attempts may be made to bribe and intimidate the rape survivor to turn hostile.
While we do have a duty to our client, we have a higher duty to ensure that justice is done. We must jettison the old so-called ethical standard that permitted us all kinds of illegalities in the guise of representing our client. A new ethical norm should be followed that requires all advocates to only do things that are morally upright. Thus, we do away with the old contradiction between legality and morality. Anything that is immoral should also be taken as illegal. Thus while representing the accused in rape cases, a lawyer should not descend to the level of being a mouthpiece of his client. Rather she should be frank and fair with the court and the rape victim.
“Lawyers must get rid of the impression that they are required to be neutral. Since women in India suffer terrible oppression, discrimination and violence, it is our duty to be on their side.”
Lawyers must keep abreast of the latest developments in law and guide judges in the direction of enlightened decision-making based on a strong inclination in favour of women. The Constitution encourages a bias towards women and so we ought not to feel apologetic about this. Rather, we must be proud to say that we are feminist lawyers. Medical examination by the “finger test” must never be done. The dignity of the rape survivor should not be undermined in the slightest manner by suggesting that she was “habituated to sexual intercourse”. The past sexual history of a rape survivor is not the concern of the court. Even if you are defending the rape accused, you must ensure that compensation is paid and that the rape survivor is rehabilitated in accordance with the various state schemes with the provision of government jobs, residential houses, educational facilities and ration cards. You can play an important role during trials to ensure witness protection, free medical treatment and counselling, without prejudicing the interests of your client. If you practice in a rural area where khap panchayats play a terrible role in forcing the woman to withdraw her case under threat of removal of the entire family from the village, you must rise to the occasion and fight for her rights. Young people in the villages are not particularly happy with the backward notions of their seniors and they need leaders to show them the way to change. Lawyers therefore, must transform into social activists, reformers, agitators, mobilisers and educators. You are respected in society. The time has come for all of us to earn that respect not by appearing for the rich and powerful and upholding the retrogressive status quo, but by moving aggressively towards social change.
We also have a very important role to play at the police station where the rape survivor is taken first and where lawyers can counsel the woman, ensure the recording of a proper FIR, ensure the medical examination is done well, ensure the woman is protected from further intimidation and finally stop any attempts by the accused and his friends to influence the police.
During the freedom struggle, Indian lawyers sided with the movement against the British. We are now in a similar situation where there is crisis all around us. While choosing to represent clients, we must give first preference to representing the rape survivor in the criminal proceedings. Whereas earlier, such a lawyer aiding the prosecution had hardly any role to play, today such a lawyer can file a vakalatnama on behalf of the woman complainant, intervene in court proceedings and even ask questions in cross-examination with the permission of the judge, and bring to the notice of the court any mistakes committed during the trial. Such a lawyer can protect his client from intimidation.
Lawyers must get rid of the impression that they are required to be neutral. They must be seen as legal warriors who fight injustice everywhere so that constitutional ideals permeate everyday life. Since women in India suffer terrible oppression, discrimination and violence, it is our duty to be on their side. In the process we may lose some of our rape-accused clients. Never mind.
Colin Gonzalves is a Senior Advocate, Supreme Court of India. A human rights litigator, he specialises in human rights protection, labour law and public interest law.