The Supreme Court’s decision to transfer the so-called Kashmir sex scandal case to Chandigarh upholds the vital right of every person, regardless of the nature of the crime, to a free and fair trial. It also marks the determination of the apex court that justice is not just done, but seen to be done. Coming in the heels of the Gujarat Best Bakery case, which was shifted to Maharashtra leading to the conviction of the accused in the retrial, it is also an elegant judicial solution to an otherwise difficult problem. It is no secret that the J&K Bar Association is a highly politicised body that has been vociferous in its support for separatists. Some of its more intemperate remarks have been criticised by the apex court. As is the wont in such issues, the sex scandal took on the hue of an anti-India upsurge and the Bar Association declared it would not allow any lawyer to defend the accused. In the circumstances the Supreme Court had little option but to act as it did. This is all for the good and sends a signal across the country that jurisdiction issues will not be allowed to stand in the way of delivering justice.
The Supreme Court has asserted itself to protect the tenets of constitutional law. This sets down that in the interests of a free and fair trial, the accused is assumed to be innocent until proved otherwise; and that, he or she cannot be denied their legal right to a defence lawyer. While an individual lawyer is free to refuse any case, the code of ethics that binds the legal fraternity mandates that they act in accordance with the rules of law. As such, the J&K Bar Association’s unprecedented move to actively prevent the accused in the case from procuring legal aid is unconstitutional and unethical.
An unpleasant situation has now been reversed by the Supreme Court. Yet, we should not have to depend on the apex court to set things right all the time. There is also a great deal of responsibility on individuals and institutions to ensure a respect of the law, in its letter and spirit.