Mohan Guruswamy | Without fair defence, right to fair trial is meaningless

The brutal rape and murder of a trainee doctor on August 9 within the hospital premises was allegedly by a person known to frequent the premises and who was considered as known to the then principal, Dr Sandip Ghosh. It could have been an open and shut case but typically the state government’s immediate response was ham-handed and gave rise to many apprehensions, much it well fuelled in the social media by political adversaries of the chief minister. It may not have been so, but it did appear that a coverup was underway, particularly as the hospital head was posted out and appointed as head of another well-known institution within four hours.

The Calcutta high court was already seized of the matter and had directed that the case be taken away from the West Bengal police and be investigated by the CBI. The court also pulled up the state government over the manner in which it was dealing with the agitating doctors and advised it to “sympathise with the doctors and their agitation, and also to appreciate popular feelings”. But nevertheless, the Supreme Court decided to act, saying: “Why we decided to take suo moto (action) though the Calcutta high court was hearing it because this is not just a case of a horrific murder in a Kolkata hospital, but this is about the systemic issue about the safety of doctors across India.” Clearly, the apex court was concerned about the much larger issue of the security of hospitals and their staff all over India. We can understand this concern as we read and hear with monotonous frequency about how doctors and nursing staff are belaboured and assaulted when some patients and their families are not satisfied with the medical outcomes.

The case has aroused passions and typically many people have prejudged the matter. The drama of the SC’s hearing broadcast live was further exacerbated by social media postings of habitual trollers. A popular post lists out the names and photos of 21 lawyers headed by senior counsels Kapil Sibal and Menaka Guruswamy, facing a team headed by solicitor-general Tushar Mehta with just five lawyers by his side. The power and the majesty of the Union of India which he represents obviously doesn’t matter? Besides, this particular post makes it out that 21 lawyers were appearing against the victim.

The lawyers appearing for the West Bengal government are being trolled for doing their job. These people don’t seem to realise that under our judicial system, described as an adversarial system, the judge is expected to judge on the merits of the case and not general sentiments.

The adversarial system is a legal system used in common law countries where two or more advocates represent their parties’ case or position before an impartial person or group of people, such as a judge or jury, who attempt to determine the truth and pass judgment accordingly. It is in contrast to the inquisitorial system used in some civil law systems (such as those deriving from Roman law or the Napoleonic code) where a judge investigates the case. The adversarial system is a two-sided structure under which trial courts operate, pitting the prosecution against the defence.

In free and democratic countries like India, the right to counsel is regarded as a constituent of the right to a fair trial. This right is often included in national constitutions. Of the 194 constitutions currently in force, 153 have language to this effect. The Constitution of India guarantees the right to counsel.

In fact, without both sides being represented by recognised and registered legal counsel, the case cannot be conducted. In a case, legal counsel on both sides are regarded as officers of the court and their intellectual and legal jousting is only to establish the truth based on evidence. Lawyers are expected to provide counsel without prejudging their clients or pandering to public sentiment. True professionals are not expected to pick and choose sides. At any given time, a lawyer such as Menaka Guruswamy appears for all manner of clients. She appears for the defence and also for the State. When she appeared for a RSS-linked outfit, I was recipient of troll attention just as I am now a recipient of it because of the Kolkata matter.

My late father-in-law, whose senior counsel gown my daughter Menaka proudly wears, enjoyed a big reputation in the Andhra Pradesh high court for his judicial acumen and success. He appeared in some highly publicised cases, and when asked about defending the apparently indefensible, used to simply reply that it was up to the court to judge, his job was to ensure his client or sometimes the state, gets the best advocacy and the laws of the land are respected. My late grandfather, who was a famous lawyer of his time in Madras, once appeared for the hereditary mahant of the Tirupati temple, who was aggrieved for having been removed by the government for his extravagances and personal habits. When I asked him about it many years later, he simply replied that he was not defending the mahant’s character but the manner in which he was removed. It was unlawful. The state had to later enact new legislation and got rid of the pernicious system of hereditary mahants.

“The right to a fair trial is one of the fundamental guarantees of human rights and the rule of law, aimed at ensuring administration of justice. A fair trial includes fair and proper opportunities allowed by the law to prove innocence.”