SC’s dismissal of Dec 16 rape case review raises troubling questions about lawyers’ ethics, court process

The SC had previously ruled “all the three dying declarations are true, voluntary and consistent.” Therefore, the standard for review was not satisfied.

*“Among the Russian people, lawyers have long been called ‘hired consciences.’”*
~ Fyodor Dostoevsky, The Brothers Karamazov

Is it fair that the rapists in India’s most heinous crime have not received their just deserts after six years? Isn’t one of the core requirements of justice that victims receive closure in a timely manner? What are the ethical obligations of lawyers when defending such heinous criminals? Are they – true to Bollywood stereotype – supposed to lie, cheat, and use every trick to free the accused? Is it ethical to use court processes to delay punishment? And shouldn’t the court prevent its processes from being abused by non-meritorious claims?

The latest saga in the December 16 rape case raises these troubling questions. Here’s why.

First, the facts. The Supreme Court rejected review petitions filed by three of the worst rapists in Indian criminal law history on July 9. In doing so, the court brought the tragic case one step closer to finality.

What is the latest decision about? On July 9, the SC disposed of two review petitions. The first was filed by Vinay Sharma, accused 1, and Pawan Gupta, accused 2, who had been sentenced to death for the rape and murder. Their appeals failed. Thereafter, Sharma and Gupta approached the SC with this review petition under Article 137 of the Constitution.

The accused made several strange claims. First, they argued for the death penalty to be struck down as unconstitutional, claiming it “goes against the principle of non­-violence that India has advocated for decades”. Second, they were framed in a “maladroit effort to book the vulnerable and the innocent so as to disguise and cover …[the prosecution’s] inefficiency”. Third, they challenged the dying declarations made by the victim. Fourth, they attacked the evidence about the bus in which the rape was committed.

Unfortunately, these arguments are nonsensical. As the SC said, Article 137 review jurisdiction is not an opportunity to re-litigate the case. Justice Bhushan wrote that Order XLVII Rule 1, Supreme Court Rules, 2013, is clear that review will granted only “on the ground of an error apparent on the face of the record”. The court relied on precedents that it is “not open to the Court to reappreciate the evidence and reach a different conclusion, even if that is possible”.

Similarly, the SC tossed aside the death penalty claim, noting that capital punishment had been held to be constitutional in Bachan Singh. Regarding the attacks on evidence, the SC found they were “general in nature and not based on any substantial ground”. For instance, the court said DNA matching had established the bus was involved in the crime.

Further, the second dying declaration provided “great detail, specifying the role of each accused, rape committed by number of persons, insertion of iron rod in her private parts, description of the bus, robbery committed and throwing of both the victims out of the moving bus in naked condition.” In addition, during the third declaration, the victim had written the names of the criminals in her own hand “Ram Singh, Mukesh, Vinay, Akshay, Vipin, Raju.”

The SC had previously ruled “all the three dying declarations are true, voluntary and consistent.” Therefore, the standard for review was not satisfied.

In the second petition, Mukesh v NCT, the accused made various claims including that he had not been produced before a Magistrate within 24 hours of arrest, he was tortured, he could not drive a bus, had an alibi, etc. The court dismissed them. The accused had previously not pleaded torture. And non-possession of a bus driving license was irrelevant because of evidence that he was the driver.

Clearly, the review petition had absolutely no merit. Article 137 doesn’t offer means to challenge the death penalty. And raising arguments that were dismissed at trial and appeal is a waste of the court’s time. Moreover, it is an abuse of process.

So, is it appropriate for a lawyer to make such arguments when he ought to know they have no reasonable prospect of success? And what if the only goal is to delay punishment?

Popular culture – especially Bollywood – casts lawyers as people who lie, twist facts, and use trickery to win in an adversarial contest. And apparently these tactics are fair game – you don’t see any Bollywood court punishing lawyers for lying, bribing witnesses, or manufacturing evidence.

What does this say about our popular culture and perceptions about the justice system? The sad reality is that popular culture reflects public opinion – both lawyers and the justice system are evidently held in poor light.

That’s dangerous for the rule of law.

Lawyers must perform their professional obligations if these perceptions have to change. First, lawyers are not mere mercenaries. A lawyer is an officer of the court and accordingly has obligations to tell the truth, behave ethically, and not misuse its processes. Second, lawyers have obligations to the adversary – to use legitimate means. That’s because the justice system is a cooperation game where both sides are expected to abide by certain rules. Third, it is trite that lawyers cannot lie to the court, bribe witnesses, make implausible arguments, cause unnecessary delays, and obstruct justice.

Fourth, courts must be firm in policing bad behavior and meting out stringent punishments when lawyers transgress. As evident from the above, the arguments for review jurisdiction were non-existent – there were no new facts, and there was no error apparent on the record. Then, why did the court admit this petition filed in 2017? Why did it waste a full-year considering it? The petition should have been dismissed immediately – saving time and ensuring fairness to the victim. Immediate dismissal would also ensure fairness to other litigants who await justice.

Fifth, the case raises questions about fake witnesses and alibis. Why weren’t these prosecuted and jailed for perjury?

Sixth, the legal profession must mandate continuing ethical training for all lawyers and create a credible and transparent system of lawyer discipline.

Seventh, law schools should not treat legal ethics as an afterthought. The Kantian imperative that “thou shalt not lie” must be ingrained in every law student and basic ethical obligations must be non-negotiable.

Without reform, victims and observers will lose confidence in the justice system. There is already an emerging trend toward vigilantism because people crave justice and believe the system has failed them. If this takes root, the legal profession will be the biggest losers.

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