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Delhi rape accused deserve a fair trial – and they’re not getting one

With global attention and the Indian public so invested in the Dehli rape case, the rights of the accused to a fair trial are in jeopardy. AAP/Anindito Mukherjee

Sometimes, a matter of domestic law - a murder, a kidnapping, a rape - can be so horrifying that it is keenly felt, and keenly watched, around the world. This was the case with the gang rape of a 23-year-old physiotherapy student in Delhi last year, and now the trial of the five men and one teenager accused of the crime has commenced.

This is a case where the public has an interest in seeing justice meted out against the offenders, and an appropriate sentence given. The accused face the death penalty, or chemical castration, if convicted. Prosecutors allege they have strong evidence, including forensic evidence, to prove guilt.

But concerns about the trial process mean that the trial may be unfair, and that the ultimate verdict may rest on unstable evidentiary grounds.

The rights of an accused to a fair trial are set out in international law, particularly the International Convention on Civil and Political Rights, which India signed in 1979. India’s national laws, including its constitution, also prescribe some rights of an accused.

These rights protect the accused, set against a system with the power to take the liberty (or even, in this case, the life) of that person. These rights also serve to protect the basis for convictions and assist the court to reach its conclusion on guilt. They ensure that evidence is rigorously tested and any problems are exposed. If the evidence cannot establish the case, the accused should not be convicted. These rights therefore protect the legitimacy of the trial and ultimately the system of law.

But in this case, there are several major concerns.

First, the trial is being fast-tracked, and held in a specially-constituted court. Prosecutors hope to finish the trial within months. There are considerable concerns about India’s fast-track courts. Some have noted that while justice delayed is justice denied, justice hurried is justice buried.

Second, the accused have not had easy access to a lawyer. Under the ICCPR, and the Indian Constitution, an accused has the right to a lawyer of their choosing. The Indian case A.S. Mohammed Rafi v. State of Tamil Nadu held:

Every person, however wicked, depraved … or repulsive he may be regarded … has a right to be defended in a court of law.

An impartial and capable lawyer will ensure the complicated court processes are adhered to, evidence is appropriately tested, and the case is proved “beyond a reasonable doubt”. Defence lawyers therefore ensure that any conviction is based on strong evidence.

In this case, however, the accused were held in custody for almost three weeks without a lawyer. The District Court Bar Association, representing 2500 local lawyers, has voted not to represent the accused. One of the Bar Association members said that “it would be immoral to defend this case”, and that the lawyers had decided to “stay away” in order to ensure “speedy justice”. This severely limits the accused’s ability to choose a lawyer. While several of the accused now have lawyers, there are still concerns about the exact arrangements.

Third, the presumption of innocence has not been respected. The vice-president of the Bar Association said the men committed a “heinous” crime, before they had been presented to the court. The prosecutor commented that the accused are guilty. However, the accused have not yet been proven guilty – they should be presumed to be innocent. In a case so emotionally charged that demonstrators are burning effigies of the accused, it is crucial that there are no comments which presume the guilt of these men.

Fourth, the case is being held in closed court, without media. The ICCPR upholds the right of an accused to have a public trial, except in exceptional cases, as does the Indian Code of Criminal Procedure. Holding trials in open court ensures transparency. Scrutiny of process should protect the accused from arbitrary punishment, and encourage public confidence in the trial and the justice system: justice is both done, and seen to be done.

Finally, the lawyer representing three of the accused alleges that they have been tortured into making false confessions. Human Rights Watch has documented the prevalence of police brutality in India. Given these men were held for three weeks without lawyers, this could indeed have occurred. Allegations of torture undermine the veracity of any confession.

So the accused are being presumed guilty, may have been tortured into confessing, have been unable to choose an appropriate lawyer, and the evidence against them will not be tested in an open, and appropriately constituted, court. This is almost a check-list of how to ensure a show trial.

The charges are serious, and violence against women is a serious problem. This case deserves a serious trial. An unfair trial will deny this victim’s family the possibility of a guilty verdict that rests on solid ground. The lack of lawyers for the accused could lead to an appeal of any conviction, and there may be other appeal points that arise from breaches of the accused’s rights.

This crime was shocking. Those who perpetrated it should be appropriately punished. That’s why the court processes should be strong; the evidence rigorously tested; and the verdict above disrepute. Especially in cases where liberty, life, or bodily integrity may be taken as punishment, the rights of the accused must be upheld and the trial must be fair.

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