Doubts raised about fairness of Delhi rape trial

NEW DELHI: In the court of public opinion, the men being tried in the gang rape of an Indian university student should be hanged in a public square. That demand for swift justice might make it impossible for them to get a fair trial in a court of law.

Already, there are plenty of portents. Amid the heightened emotions that have surrounded this case a local bar association has stopped its members from representing the men citing the heinous nature of the crime. The three grandstanding lawyers who have rushed in to represent the accused spent weeks taking potshots at each other instead of coordinating a defense.

Two lawyers fought for days over which one was representing one of the defendants. And the case is being heard by a brand new fast track court, set up in the wake of the rape to deal with sexual assaults in the capital, that is under pressure to reach a verdict within weeks. Finally, whatever is said or submitted in court has to stay in the room — a gag order by the judge prevents the media from reporting anything about the case. “However wicked and depraved society may perceive a person to be, he deserves a fair trial. He deserves a good defense,” said Markandey Katju, a retired judge of India’s Supreme Court. “That some of those charged are the real culprits and some are innocent … that is a very real possibility,” he said, adding that in India the police “spreads its net wide.”

As details of the attack have emerged Katju said he feared the trial may be overrun by emotion rather than the calm voice of reason. “You can’t decide cases on sentiment. That’s lynch law.” The specifics of the gang rape are horrifying. According to the police report, the attack lasted at least 45 minutes. There were six attackers, one of whom claims to be a juvenile and is being tried separately. Each of the men raped the 23-year-old woman, with at least two taking turns driving the bus. They penetrated her with two metal rods, causing such severe internal injuries that doctors later found parts of her intestines floating freely inside her abdomen.

The battered woman and her badly beaten male friend were then thrown out of the moving bus and lay naked and bleeding on the side of a busy road on a cold December night. The attack was so brutal that the woman died two weeks later in a Singapore hospital. Within two days of the attack the police arrested the six accused. According to the police all six confessed their crimes. The police report said that DNA evidence from the men tied all of them in the rape and murder. According to police documents blood and saliva swabs from the accused matched the DNA found on the victim’s injuries. The victim’s blood was also found on the clothes, underwear and slippers of the accused. The attack in the heart of New Delhi brought protesters into the streets demanding the government protect women and ensure those attacked get justice. In response, the city government set up five fast track courts to swiftly handle those cases, keeping them out of India’s overburdened regular court system, where trials can drag on for years if not decades. As the police framed charges against the men and prepared for trial the bar association of Saket, the district where the case is being heard, declared that their members would not represent the men. They were following a precedent set by lawyers’ groups across India over the last few years, which have banned their members from representing those accused of terrorism and other heinous crimes.

“This is completely unconstitutional and unethical,” said Katju. “Right minded lawyers should defy and ignore such rulings.” Outside the courtroom the cries for a quick trial and execution of the five men have persisted. “They should be handed over to the public and hanged,” said Prakash, a 51-year-old gardener who had come to court on a personal matter but waited to get a glimpse of the accused being whisked into court. She uses only one name. The three men who rushed forth to represent the accused were not members of the local bar and have spent more time fighting each other than putting up a defense. One insisted he would ask the Supreme Court to move the trial out of Delhi because emotions were too high to hold a fair trial here. But when a second lawyer made a similar appeal, the first changed his mind and vehemently opposed it. One lawyer, M.L. Sharma, has accused police of planting the other two defense lawyers to ensure a guilty verdict. “I’m the only hurdle standing in their way,” Sharma said earlier this week. Even as he made his allegations, fellow defense counsel V.K. Anand stepped up to say that Sharma’s client had decided to fire his lawyer — and hire him. The dispute over who would represent the defendant was only resolved Thursday — the day the trial started. Sharma dropped out of the trial, saying he feared his client would be tortured to get him to change his lawyer. Anand replaced him. Sharma has accused police of beating all five men to extract their confessions, then later amended that to say only his client was beaten. He also made unsubstantiated accusations that the victim’s male friend was somehow responsible for the deadly assault, only to backtrack later.

Another lawyer, A.P. Singh, said the only reason he agreed to represent two of the accused was because their families had begged his mother for help. “My mother has a kind heart and an order from her is like an order from God,” he said, posing dramatically for the cameras. Anand hasn’t spoken about his strategy, but both Sharma and Singh have claimed at least once that their clients were not even on the bus during the attack. In the past, courts across the country have criticized the police for coercing confessions and even planting evidence to get convictions. “We set so little store by how the police functions in this country. There’s no reason to accept the police’s version of events in this case without thorough legal scrutiny,” said Jawahar Raja, a lawyer and activist. The defense is made even more complicated by the fact the case is being tried in a fast track court.

As a result the police has put together its case at rapid speed. The trial has started even as defense lawyers are falling into place. “Justice takes some time. It’s all very easy to talk about fast track courts,” said Katju, adding that cases should be tried quickly and efficiently but without a looming deadline. “A judge has to read all the documents, hear the lawyers, apply his mind. It’s not a magic lamp that with a swish you can dispose of a case.”