The Legal Rights of the Accused are as Inalienable as Those of the Victim in the Uber Rape Case

To many, and with good reason, Shiv Kumar Yadav—the sole accused in what is now known as the Uber rape case—is a striking reminder of the abysmal state of women’s safety in India. While the former taxi driver has only been accused of and is being tried for the alleged rape of a woman passenger on 5 December 2014 in Delhi, it was revealed through subsequent investigations that Yadav had committed several sex offences in the past.

On 7 December 2014, Yadav was nabbed at Mathura in Uttar Pradesh after a massive manhunt was launched by the Delhi police amidst a huge outcry in the media. On 24 December, nineteen days after the incident, a charge sheet was filed by the Delhi Police against Yadav, and on 13 January 2015, a Delhi Court framed charges against him for alleged rape and kidnapping. The court also ordered a trial for the case on a day-to-day basis.

Yadav was being represented by Alok Dubey, a lawyer he had chosen himself. However on 9 January, Yadav refused to sign the charges that were read out to him and subsequently alleged that he was not being represented properly. Dharmendra Mishra, the new defense counsel  complained on behalf of his client that the trial was a sham. He believed that Dubey, a fresh law graduate who had just joined the profession, was incompetent and that Dubey was conducting himself as though he represented the prosecution. He asserted that the evidence—in particular the testimony of witnesses, which can make all the difference to a criminal case—was not being recorded properly, and was possibly jeopardising a fair trial.

Following this complaint, Yadav decided to invoke Section 311 of the Code of Criminal Procedure, which permits a court to recall witnesses and get them to testify again, if such evidence is essential to a just decision in the case. On 18 February, Kaveri Baweja, the trial judge, turned down this plea. In her order, she reasoned that Yadav’s contentions regarding incompetent and ineffective legal representation were a “bundle of lies,” aimed at delaying the trial and intimidating the victim who would have to relive the trauma of narrating her experience and face harrowing and humiliating questions from the defence all over again.

Yadav moved the Delhi High Court on appeal, which ruled in his favour on 4 March. However, the court didn’t approve of everything that he demanded—it pruned the list of witnesses to be recalled from twenty-eight to thirteen, and categorically stated that the trial court should not grant any adjournment on any ground whatsoever. But on 10 March, after being approached by the victim, the Supreme Court stayed the high court’s order. During the hearing, the judges expressed their worry about a problematic precedent being set. What if every accused, dissatisfied with the services rendered by his or her lawyer, started claiming parity with Yadav and asked for a recall? Would it not hold up trials, besides aggravating the victims’ suffering?

So, should a rape accused be allowed to claim that his fundamental right to a free and fair trial is being subjugated to the victim’s right to dignity in court proceedings? The crux of the matter lies in whether Yadav—who faced immense media scrutiny and adverse coverage on account of the heinous nature of his crime—can assert that his right to effective legal representation is as non-negotiable as the legal rights of the victim.

Undeniably, it is crucial to factor in the extent of the victim’s trauma and her plight in this case. A cross examination in rape trials is a distressing experience and if the re-examination of the victim by Yadav’s counsel on 8 March—before he was stopped by the judge—is any indicator, then this trial has been no different. However, this doesn’t appear to find as much space in the decisions of both the trial court and high court. The primary focus is on the interpretation of Section 311 in the present context and whether its scope extends to allowing crucial witnesses to be recalled just because the accused has expressed dissatisfaction over the quality of legal representation he or she received. This predicament is inextricably linked to how indispensible the courts believe effective legal representation is to a fair trial.

The victim’s petition to the Supreme Court, filed and being argued by Senior Advocate Colin Gonsalves, has pointed out some grave procedural lapses by the high court in dispensing the ruling over Yadav’s appeal. Foremost among them is the fact that it did not hear the victim while partly allowing Yadav’s plea. The least the court should have done was to ensure that she was added as a party to the appeal. The second problem, as asserted by Gonsalves, was the judge’s apparent volte face.

For a major part of the decision, Justice Sunita Gupta agreed with the trial court. In paragraph 31, she dismissed Yadav’s contention that the daily hearings were an example of “justice hurried is justice buried” and that his right to a fair trial was violated as he wasn’t given sufficient time to properly consult with and instruct his lawyer. With reference to the quality of legal representation, in paragraph 32, she rejected Yadav’s claims regarding the incompetence of Alok Dubey on two grounds. For one, she said that there was no documentary evidence to prove that Dubey had not passed the mandatory screening test of the Bar Council of Delhi and hence did not possess a practice certificate. Two, she followed the Supreme Court’s decision in Navjot Sandhu, which laid down that “Judicial scrutiny of counsel’s performance must be highly deferential.” In a piece I had written for Vantage in October last year, I detailed why that Supreme Court ruling was highly problematic. It placed an onerous burden on an accused facing the mighty power of the State, and especially harmed someone too indigent to afford a good lawyer.

However, the contention about the volte face rests on a clever misrepresentation of facts. The high court did not grant Yadav’s plea because of his claims about legal representation; instead, it relied on Supreme Court precedents to hold that Section 311 permitted the recall of witnesses in the present case. The most important among them is the 2013 decision in Rajaram Prasad, where the court laid down fourteen principles to guide a fair, equitable and just interpretation of the provision. Emphasising that the wide discretion provided by Section 311 must be exercised with utmost caution and circumspection, the court stated:

The Court should be conscious of the position that after all the trial is basically for the prisoners and the Court should afford an opportunity to them in the fairest manner possible. In that parity of reasoning, it would be safe to err in favour of the accused getting an opportunity rather than protecting the prosecution against possible prejudice at the cost of the accused. [Emphasis mine]

In this context, it would be beneficial to refer to another Supreme Court decision, in the case of Hoffman Andreas (1999). In that case, the defence counsel died while the trial was going on, and the one who took his place needed to start afresh and re-examine all the witnesses. It was also contended that the deceased counsel was under some mental pressure and hence wasn’t able to concentrate on the case properly to effectively cross-examine the prosecution witnesses. Acknowledging how crucial this is to a fair defence, the apex court set aside the conviction and sentence passed by the trial court, and allowed the plea.

Unfortunately, Judge Baweja ignored these pressing precedents in her Order, and followed an erroneous approach in judging whether Yadav got the kind or level of legal representation that would satisfy, in both letter and spirit, the essential requirements of a fair trial. Apart from relying upon the Navjot Sandhu decision to hold that there had not been a constructive denial of Yadav’s fundamental right to counsel, she ruled that a freshly minted lawyer with almost no experience did not necessarily mean that he was incompetent. True, but as mentioned above, there are binding precedents which advocate erring on the side of caution.

In paragraph 27, she stated that one cannot precisely gauge the quality of the cross-examination by second-guessing what questions ought to be asked by the defence, because that would amount to pre-judging the case, which a court shouldn’t attempt under any circumstances. But, having said that, she accepted the prosecution’s contention that the number of questions that Dubey put to the prosecution witnesses proved that he had discharged his lawyerly duties to the fullest extent. Ironically, in paragraph 14, she considered it “pertinent” to take in to account that Yadav was not facing a criminal trial for the first time—he had been tried and acquitted in another rape case in 2011. Though she did not elaborate on this line of reasoning any further, it would be safe to assume that Baweja appeared to be holding Yadav’s past against him even though an acquittal is an unambiguous declaration of innocence in the eyes of law.

A high court’s judgement only has persuasive value before the Supreme Court, but a recent Calcutta High Court ruling merits a mention in this case. Ansar Ali, the main accused in the Kamduni gang rape and murder case, sought to recall the investigation officer for cross-examination, as a part of his defence strategy. The prosecution opposed this on the ground that the presence of a new defence lawyer did not necessitate such recall, since the main defence team had not been changed, and an accused is supposed to adopt only a single line of defence. This is similar to the line of reasoning that Judge Baweja took in her ruling. In paragraph 36, she held that the defence strategy cannot be changed every time a new counsel is engaged. However, on 13 March, the Calcutta High Court found that refusing Ali’s plea could prejudice his trial, and decided in his favour.

It has been reported that the Delhi Police also joined the victim’s appeal against the high court judgement on 20 March, and the Supreme Court will hear both parties today. It would be both wise and judicious on the apex court’s part to heed its own decision in the A.S. Mohammed Rafi case, delivered in 2010. Severely criticising the Coimbatore Bar Association for preventing lawyers from representing the policemen accused of and pilloried for dastardly acts of custodial torture, the court, in paragraph 16, stated:

Every person, however, wicked, depraved, vile, degenerate, perverted, loathsome, execrable, vicious or repulsive he may be regarded by societyhas a right to be defended in a court of law and correspondingly it is the duty of the lawyer to defend him.

That a proper cross-examination is an essential ingredient of such defence is the least we can expect.