What if advocates ML Sharma and AP Singh had made their revolting remarks in court, while defending their clients, the accused in the Delhi gang rape case?

Would the Bar Council of India (BCI) have legally sustainable grounds to penalise them for “professional misconduct”, as defined under the law governing the legal profession, the Advocates Act 1961? And, would the Supreme Court Women Lawyers Association, who have petitioned the apex court to impose strict penalties upon the duo and have also raised a slew of other demands, get their way?

Many justifiably outraged folks see a glimmer of hope in these two developments, both Sharma and Singh have refused to retract or apologise for their comments laden with violent misogyny.

In fact, as reported in the media, Sharma has been rather blasé, having dared the authorities to hold him guilty. The fact that those comments were made in the course of interviews to media and a documentary film-maker doesn’t make any substantive difference, because the blowback, even then, would have been equally severe, given the widespread coverage of every aspect of the case.

Sharma and Singh aren’t alone.

The day they were slapped with the notices, another fellow member of the Bar, representing Shiv Kumar Yadav - the accused in the Uber rape case, considered it a part of his advocacy to hurl insinuations and sexist innuendoes at the victim.

It’s a different matter that his attempts were nipped in the bud by a sensitive and alert judge.

Again, on the same day, Stuart Trimmer, defending the main accused in Britain’s notorious grooming case, confidently asserted that the victims of rape, most of them minors, were essentially “slags” trying to take advantage of their victimhood.

And the month before that, Dominique Strauss Kahn’s lawyer Henri Leclerc challenged the court to distinguish between a “prostitute and a naked socialite” in a case where his client stands accused of soliciting and pimping.

And on 8 April, while representing a business magnate against whom rape charges have been filed by two tribal women from Chhattisgarh, senior advocate Sidharth Luthra urged the court not to proceed without verifying the credentials and antecedents of the complainants. This, despite the presence of legislative provisions as well as precedent which bar calling into question the complainant's character.

Clarification: Sidharth Luthra has commented that "Firstly the matter before the Supreme Court where I appeared related to an Appeal from an order of the Registrar declining to list a Writ Petition on behalf of a Petitioner. Secondly the Court was not dealing with a trial in a rape case or a proceeding arising out of a trial. Thirdly a day prior the Petitioner's lawyer had agreed to produce the Petitioner referred to as XYZ and another lady who he had earlier represented referred to as ABC before the Court for their examination. Lastly after orally examining the sole Petitioner the Court allowed withdrawal of the Petition. It is in this context alone that I had stated that the Petitioners could be examined to determine whether the Writ be entertained or not."

All these lawyers would have a ready defence if they ever face disbarment proceedings for professional misconduct: an advocate is to defend his or her client without fear or favour, and an aggressive defence is an inherent part of this fearlessness, they would argue.

Even if that draws opprobrium from all quarters, and even a rap or two on the knuckles from the judge, the lawyers would remain undaunted, secure in their belief in zealous advocacy which is considered one of the mainstays of adversarial litigation, especially in criminal matters.

This holds especially true for the cases of Sharma and Singh, for two reasons.

For one, a precise legal definition of professional misconduct does not exist; Section 35 of the Advocates Act only lays down the procedure for deciding (and it is an excruciatingly bureaucratic one).

Courts have tried defining it, but haven't been of much help.

For instance, in 2004 the Supreme Court ruled that there couldn’t be any exhaustive definition, and instead said something vague about all acts of indiscipline, whether by omission or commission, whether intentional or otherwise, being included.

Then there is the Bombay High Court’s 1940 ruling, that it would include any conduct which would make a lawyer unworthy of being a member of the profession, or unfit to be entrusted with the responsibilities of an Advocate. This is also rather vague and problematic.

In fact (and ironically) given the entrenched patriarchy in the judiciary, those accused of rape would generally look more favourably upon hiring a counsel who goes for broke and unleashes a volley of sexism, resorts to and relies on profane defences and formulaic victim-blaming or slut-shaming in court, as opposed to opting for a sensitive fellow, keen to use the principles of feminist jurisprudence.

In Indian legal history, there hasn’t been a single case of professional misconduct charges succeeding against lawyers revelling in sexism, and even if it were, it would be easily repelled by falling back upon an accused’s right to a full and vigorous defence.

True, some brazen questions or statements could be disallowed by the judge, but excessive judicial intervention, besides being practically unfeasible, could well pave the path to make charges of a mistrial in appeal, and then the lawyers in the dock would have a clear upper hand.

Therefore, are Sharma and Singh at risk of being held accountable?

Perish the thought.

Criminal defence lawyers - amoral technicians or advocates for justice?

One could use this incident to raise far broader questions which go to the heart of pressing structural issues.

First, in certain types of criminal trials, can limits and ethical boundaries be imposed upon what legal scholars term as “unmitigated advocacy”- the freedom to advance arguments which do not comport with accepted social and constitutional values?

Or, to phrase it differently, in adversarial criminal litigation involving sex crimes, can a dose of integrity be infused into a zealous defence counsel?

Second, if the answer is yes, how could this paradigm be integrated into India’s legal ethics and courtroom practice?

In 1975, Richard Wasserstrom asked: should lawyers’ ethics and legal values transgress, or even prevail over, ordinary morality? He answered that they should, proceeding to contend that moral non-accountability of the lawyer’s action in pursuit of his client’s goals and interests makes him not an honourable member of the profession, but an “amoral technician”, something like a mercenary in robes.

He went on to demonstrate how ethical boundaries, even if circumscribing defence counsels’ conduct, did not violate the rights of the accused.

William H Simon, one of the most renowned names in legal ethics scholarship, took this a step further in his 1998 work, aptly titled “The Practice of Justice: A Theory of Lawyers’ Ethics” and showed how effective adjudication of criminal cases could be achieved by striking a just balance between the rights of the complainant, the accused, and third parties (the community).

He emphatically rejected the efficacy rationale often resorted to by defence lawyers (if cynical usage of sexist stereotypes and a no-holds-barred line of questioning could enable them to win cases, then why shy away from their use?)

Just in case these theories appear more like philosophical musings and meanderings unsuitable for practical implementation, Alice Wooley provides a solution in her book Understanding Lawyers’ Ethics in Canada.

She relies upon Chapter 4.01 of the professional conduct code, which states mandates that advocacy must be fair, honourable and without illegality - that is, within the bounds of the law. Thus, if the law has been changed or reformed, and injunctions have been imposed upon certain types of cross-examination- probing into a rape complainant’s sexual history, for instance, then a legally-binding ethical obligation is cast upon the lawyer in question.

If this were to be adapted in India, one could start with the Indian Evidence Act, as amended in 2002. Earlier, the defence could bully an already traumatised complainant of rape by probing into her “character”- activities, sexual history, and the like.

Section 155(4) of the Indian Evidence Act 1872 allowed the accused to rebut charges by proving that the prosecutrix was of a “generally immoral character”. This has now been reformed and deleted, making it more difficult to impeach the alleged victim’s credibility.

And the newly inserted proviso to Section 146 of the act, explicitly bars any question pertaining to morality in cross-examination.

One could also refer to precedents which have sought to mitigate the harm caused by rapacious defence lawyers. Another pointer could be when Justice Jaspal Singh’s took the trial judge to task in the Sudesh Jhaku case for allowing the cross-examination of a child victim of rape to be turned into a tawdry pornographic spectacle.

The intransigence of lawyers isn’t alien to us, but since the BCI has finally been compelled to act, whatever be the reasons, would some optimism for substantive reform in lawyering practices be out of place?

Saurav Datta teaches media law and jurisprudence in Mumbai and Pune.