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Bengre rape case: Are the accused being refused 'Audi Alteram Partem'?

Bengre rape case: Are the accused being refused 'Audi Alteram Partem'?

Andrea Noronha   ¦    Dec 03, 2018 08:20:15 PM (IST)

Bengre rape case: Are the accused being refused \'Audi Alteram Partem\'?-1- Representational Image

Mangaluru: No matter who you are or what you have done, you can be confident that there will always be someone to represent you in a court of law... or can you?

While the constitution gives every person the right to have legal aid and representation, there have been many instances wherein members of the legal fraternity have openly refused to take up a case also calling on their colleagues to follow suit. These kind of instances are seen in heinous crimes, where the public is emotionally or politically charged. Members of the legal fraternity, many a times, openly refuse to defend someone accused of certain crimes, such as the Nirbhaya rape and murder or the 26/11 Mumbai attack, on moral grounds. Such stances usually earn them public appreciation, however, it begs the question of whether such actions are detrimental to the judiciary.

The Bengre rape case has drawn a lot of attention and also ire of the people. Several associations have reportedly approached the Mangalore Bar Association to pass a resolution, prohibiting their members from representing the accused in the case. Many from Mangaluru's legal fraternity have also said that they would not defend the accused.

Speaking to Newskarnataka, Justice Santosh Hegde said, "It is unfair of them to refuse the case, but in a way, it is good that they are choosing not to represent the accused. It is always better not to represent someone when you are biased against them." Having said that, Justice Hegde said that the court can appoint someone to appear for the defence. "On their own, people may not want to appear, but when the court appoints someone, nobody can say 'no.' No accused should go without legal representation. The accused can make an appeal to the court to appoint an amicus curiae (friend of the court) and it will appoint somebody. When the court appoints someone they (lawyer) will really work hard to get them (accused) acquitted."

When asked what would happen if the bar association passes a resolution not to represent someone, Justice Hegde said that it would be very difficult, in that case, for members to appear. "It had happened to me once when I was an Advocate General. The bar had boycotted a court so they did not want anybody to appear in that particular court. However I had a case so I appeared and they boycotted me. We can't help it in that case. We have to either hold or resign the office. But it is an obligation for everyone to have legal assistance," he said.

President of the Mangalore Bar Association, Advocate M Ballal told NewsKarnataka that the committee was yet undecided about the issue as they are to meet and discuss the same on Wednesday, December 5. However, from a personal standpoint, Ballal said that individually, he would not take up the case. "Even if the association were to hand the case to me, I would turn it down," he said, clarifying that his views do not reflect those of the Association.

Talking from a practising lawyer's point of view, renowned advocate Asha Nayak said, "Our judicial system works on the principal 'it is better that 10 guilty persons escape than one innocent suffers.' Although it is the duty of every lawyer to take up a case, whether they want to or not is left to their discretion. They can't be forced to take up a case or not."

Another prominent lawyer from Mangaluru, however, said that what his colleagues were doing was wrong. On condition of anonymity, he told Newskarnataka, "Even in the case of Ajmal Kasab, one of the terrorists who attacked Mumbai, there was a lengthy procedure. He was given an opportunity for a defence and then he was punished. That is the basic Indian judiciary system. We cannot declare someone guilty, even if they are. It is for the judge to decide if the person is guilty or not. We can only present the case. We cannot decide for ourselves on that. Even those who are not able to afford a lawyer are given free legal aid because no one should be condemned unheard."

Speaking about the Thota Bengre rape case in particular, the advocate said that by saying that they will not represent the accused, the other lawyers have decided for themselves that the accused are guilty. "This is not correct. There are instances where the police falsely implicate someone. It is not that it has happened in this case but that doesn't mean that the advocates can say 'he's a criminal so we will not represent him.' Have we seen the crime? No, we have not. If we have seen the crime then we can say 'Yes, my conscience doesn't permit me to defend the person.' They can say that on moral grounds. A lawyer can refuse to represent someone only when there is a conflict of interest."

Dinesh Hegde Ulepady, a prominent criminal lawyer also agreed saying that so long as an advocate is able, they should not refuse to take up a case. "Based on principal alone, it is wrong for an advocate to turn down a case. It goes against the constitution as everyone has the right to have legal representation. The Bar cannot stop its members from taking up a case or turning it down," he added.

Meanwhile, human rights activist Dr. Ravindranath Shanbag said, "Everybody has got a right to express their views and defend themselves. Most of the people are legally illiterate and therefore they need a lawyer. It is common sense that when a lawyer is defending someone, they don't necessarily agree with the client. I felt sad when I heard that learned people are saying they will not defend the accused."