‘A case is a case’: For some lawyers, defending rape is a business
“But, Milord,” Shrey Sharawat thumped the long, wide table separating the judge from the rest of the courtroom, “If a seven-year-old child is sexually assaulted by a twenty-five-year-old adult, surely you expect worse injuries than a scratch mark?”
Two minutes is all Sharawat had been allotted by the judge to argue a bail application for his client, a private tutor arrested in 2015 on the charge of sexually assaulting one of his students, and the young lawyer had arrived at court determined to make the most of his slot.
Every second counts in the four courtrooms dedicated to sexual offences at the district court in Saket, one of Delhi’s six. One hearing leads to the next at an almost theatrical pace: tables cleared, computer screens refreshed, and a whole cast of characters — prosecution, defence, accused, witnesses, families — replaced by another.
A case is a case
In a six-hour workday, the judges in these courtrooms hear anywhere between 10 and 15 cases each. While Shrey Sharawat was stressing his client’s status as sole breadwinner in his family, a prosecution lawyer on the same floor was aiding a mother testify to the alleged rape of her daughter by her husband, and a defence lawyer was questioning an investigating officer about the quality of packing tape he had used to seize evidence from the scene of a sexual assault.
However horrific the details of the cases, proceedings in these courtrooms are conducted with the coldness of a standard government office in India, whether it’s a judge asking a husband accusing a man of raping his wife if he has seen the videos pointing to her affair with the accused before the marriage, or another debating with a medical officer the pattern of injury a wooden stick might leave on vaginal skin.
A case is a case, as every category of court staff, from judges to peons, says in defence of their detachment. However, no one approaches rape in India in a more business-like manner than the lawyers who defend the accused. For them, as they are fond of saying, every case of sexual offence is “bread and butter”. Who are these people, and how do they go about their work?
“Think of rape (defence) lawyers as service providers,” says Rohit Kaliyar, who spent years in the practice before moving on to other fields of legal work. “Your loyalties lie with whoever is giving you money. It works like any other service industry. If you worked at a hotel, you would have to cater to even a gangster if he walked in.”
It’s not an easy job, says Kaliyar, who has defended hundreds of people accused of rape in a 10-year career. “Most of the cases I handled were of retrospective rape, where a woman accuses a man of having lured her into having sex by promising to marry her. How do you investigate that? What stands for evidence? What scientific inquiry can you conduct? It’s mainly one person’s version against another’s. As a defence lawyer you can only question the complainant, but now there are limits on what you can ask. You can’t ask her about her sexual history, for example. You are not allowed to be intrusive.”
The “breach of promise to marry” is a common category of rape case that shows up at the district courts in Delhi. According to an investigation by the Hindu in 2014, the largest category of reported sexual assault in Delhi involved consenting couples, with the boy accused of rape by the girl’s parents.
“Sixty per cent of sexual assault cases are false,” says Sharawat, who takes on rape cases on both sides, as an assistant to the public prosecutor as well as a defence lawyer. “I take everything that comes my way.” Lately, he said, a lot of “promise-to-marry” cases follow a trend.
“It begins on matrimonial websites. The guy will create a fake profile, show interest in a girl, they will start dating and then get physical. After a while, he will vanish or refuse to marry,” he said. “I recently fought the case of a girl who went through the same experience. She figured it out while talking to a friend who was apparently sleeping with the same guy under the same circumstances.”
Sharawat is as likely to fight such a case from the side of the deceitful man. “The only time I don’t defend an accused is when I know for certain that sexual assault has happened. I sometimes don’t know that while taking on the case, but I always know when I go through the medico-legal case (MLC). The reason I am defending the tutor, even though I initially wondered if he wrongly touched the kid, is that I have seen the MLC.”
Drawing the line
He knows the ethical challenges of his job. He is also aware he is the only one who can draw the line between legally justifiable and morally indefensible. “I am a human being. I question my clients before I defend them in court. You apply your mind. Occasionally, I withdraw my vakalatnama (licence to argue) or I stop being proactive during the trial. I was recently representing a girl who had accused a guy of breaching the promise to marry, but while I was arguing her case, I learnt that she had done the same with two other men previously. I questioned her. She said she felt she had been wronged by all of them. I told her being wronged is the not the same as being raped. I didn’t oppose the bail for the accused in this case.”
There are a number of reasons why the promise to marry is made and betrayed, he says. “Guys like to sleep around, first of all. Then there are guys who refuse to marry the girls they are in a relationship with because they want to be able to demand dowry from others. There are also men who feel that when it comes to marriage, they must find a virgin.” Does he ever question his male clients’ breach of promise? “Sometimes I do ask them, ‘You want to sleep around, but marry a virgin?’”
As a lawyer defending men accused of rape, he finds it harder dealing with people whose first call of defence is to blame the victim. “The other day I got a call from someone who he said his brother had been accused of section 376. I learnt the details of the case: the guy was seeing this girl, she broke up with him and refused to see him, and he forcefully met and raped her. His brother starts telling me that the girl is a prostitute. I ask him what his basis is for the claim. He says everyone knows that. I ask him how it is relevant to the case. He realises I am not the right lawyer and doesn’t get back in touch. I have to talk in a certain way to clients when I don’t want to be engaged.”
Not everyone in the business is torn by such dilemmas.
All Sanjay Verma (name changed) does sitting across a client whose views he doesn’t agree with is tell him he is right. “He may be justifying rape by saying, ‘ladki daaru peeti hai (the girl drinks alcohol)’, that she has had an affair with everyone. I might be wondering how any of this matters to the case, but I will say to him, ‘bhai sahib, aap sahi bol rahe hain (brother, you are entirely right)’.”
There is nothing ethical about his job, Verma says. “Defending rape in lower courts is all about jugaad. Often, you have to bribe your way through, from investigating officer to public prosecutor. At times, you have to manipulate the victim into rescinding her statement. It’s legally wrong as an officer of the court — you can be disbarred for it — but you have no option.”
Sometimes, he fights for the guilty just for the thrill.
“I have defended non-consensual cases and shown them as consensual. Every trial is, at the end, a game, and however stupid a game, a win is a win, even if it seems inhuman. There is the WOW moment when you defend someone you know has committed the crime — you have read the charge sheet, you have read his statement—and you win the case.”