Fiona Bawdon

William Roper: So, now you give the Devil benefit of law!

Thomas More: Yes! What would you do? Cut a great road through the law to get after the Devil?

Roper: Yes, I’d cut down every law in England to do that!

More: Oh? And when the last law was down, and the Devil turned ‘round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast….And if you cut them down…do you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of the law, for my own safety’s sake!

 Man for All Seasons (Robert Bolt)

 I was reminded (not for the first time) of Thomas Moore’s impassioned defence of the rule of law by reports of the Indian justice system’s response to the extraordinarily brutal gang rape and murder of a young woman on a bus in Delhi.

Two local lawyers’ groups, the Sakhet and Delhi Bar Associations, voted not to act for the accused and created a ruckus in court when one solicitor did come forward to represent the men. Members of a campaigning group also present in court, Pragatisheel Mahila Sangathan, joined in with the abuse.

The Delhi Bar Association website maintains it is ‘in the vanguard for upholding the democratic values that our Constitution stands for’. However, it was left to the lawyer acting for the victim’s family to point out after the courtroom rumpus that the constitution guarantees equality before the law. “They have to be properly defended. Otherwise, how can it be a fair trial?,’ he asked.

The details of the appalling attack on the 23-year-old student are, by now seared into all our minds. Six men are accused of subjecting her to a prolonged and horrific assault: she was raped, brutalised with an iron bar, and then thrown naked from the moving bus. She died later in hospital from her injuries. A male companion was also badly assaulted.

It is difficult to think of a more savage crime – nor one where it is more important that the accused (like the devil himself) have the benefit of due process. Those who committed this horrific attack are owed no sympathy – but they are, as the family’s lawyer was alone in remembering, owed a fair trial (as I write, at least some of the arrested men reportedly plan to plead not guilty).

If ever there were a case where it is imperative that the police, prosecution, judiciary and defence do everything by the book, this is it. The victim and her family deserve nothing less. Nor do the hundreds of Indian women who have taken to the streets to condemn the rapists, and protest against the shocking levels of sexual violence that blights their daily lives. They all deserve to see justice done, by which I mean convictions that are demonstrably safe, and which won’t be open to appeal because they were obtained by cut corners or coerced confessions.

Like many, I applaud the level of public fury that has followed this horrific crime and the overdue debate about attitudes towards women in India. I don’t blame Indian women for being angry. They have much to be angry about.  But, while angry protest may be vital if wider social change is to be achieved, the mob has no place in the courtroom. The court needs to remain a place where evidence can be calmly and objectively weighed and decisions reached on the basis of that evidence, regardless of what might be going on outside its door. A magistrate who dealt with some of the first defendants to reach court during the UK riots of summer 2011, admitted it wasn’t easy remaining objective as the disorder carried on outside. How much more difficult for a judge to remain dispassionate if she has just had to eject what was described as a  ‘writhing phalanx of lawyers, police, media and members of the public’ who had been ‘noisily crammed into the courtroom’.

The six accused are due to be tried under a fast track system, introduced in response to concerns that the Indian justice system is slow and inefficient, particularly in handling sexual assault cases. However, Colin Gonsalves, an Indian lawyer and founder of Human Rights Law Network, has already dubbed the new system ‘fast track injustice’. He warns that decisions are made on the basis of ‘hunches and guess work’, with judges ‘cutting down on evidence, not allowing full cross-examinations, proceeding in the absence of lawyers in many cases.’

Even without the issue of being tried under an unproven expedited system, this case has many ingredients familiar to anyone with knowledge of the miscarriages of justice that blighted our own legal system. In common with the Guildford Four and Birmingham Six cases, it too involves a particularly shocking crime; overwhelming pressure for speedy convictions; ‘confessions’ obtained without lawyers present; and subsequent claims of police brutality and torture.

It took 14 and 16 years, respectively, for the exonerated defendants in the Guildford and Birmingham cases to walk free from prison. With the Indian defendants facing the death penalty, the stakes if mistakes are made are even higher. To add to the sense of a mob being out for blood, rather that justice, there have been calls for the men to be publicly hanged, and for a change in the law so that the 17-year-old defendant can also be executed.

However, Indian women and other vulnerable groups should be careful what they wish for. If history tells us anything, it is that when a society turns away from the rule of law and towards summary justice, it is they who have most to lose.

By barracking their colleague or demanding to see a teenager swing, the lawyers and rights campaigners of Delhi are doing a fine job of flattening the laws of the land to get after these particular ‘devils’.  But I guarantee that, if they succeed, it will be the already protected and powerful, not Indian women, who are left standing upright in the winds that will inevitably follow.