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Due process and justice

There is a debate going on around a lawyer’s right to choose their client and a client’s right to counsel irrespective of the crime committed. But like every complex issue there are two sides to the story.

On one side there is the view that one should not question a lawyer’s right to choose their clients. This is a personal choice which a lawyer is free to make. Besides, the greater issue is the fundamental right of every human to have the opportunity of fair counsel. It is essential, the argument goes, to understand the issue of due process – and due process must not be selective. When we deny this right to those accused of heinous crimes, we also deny this right to innumerable (oppressed) people who fail to find adequate counsel. This is crucial especially in a society where the oppressed are prone to the failure of the legal system. The argument has merit.

On the other side there is severe criticism of this position. The idea behind this criticism is that ensuring justice is superior to the oppressor’s right to counsel. In one much-talked about case, it is said that defending the family of a known murderer, who are accused as accomplices, cannot be about human rights. It has been argued that this is such a brutal murder that those defending his family are doing a great disservice to the agenda of a just society.

Society seems to be divided between the argument that justice needs to be served and culprits need to be punished irrespective of due process of the culprit, and the counterargument that justice should not be served at the cost of a fundamental human right (due process).

There are merits to both positions in my opinion. The brutal criticism of a defence lawyer is uncalled for. Personal attacks are disgusting to the least. Besides, this media trial taints the possibility of fair trial. And fair trial is the right of every human being.

On the other hand, the public sentiment of anger is also not unjustified. Our society is sharply divided into the privileged and the underprivileged. And this system is broken – the rich and powerful usually get away with almost anything. Hence, we must actively demand justice from the state and ensure its service.

But both positions lack something – the perspective which informs each position.

Due process must not be selective but the debate on due process must not be done in isolation. This debate imagines an ideal world in which all humans are equal and have equal human rights. Rights do not operate in isolation; they are situated in the context of a society and in the context of provision of other rights as well. Legal rights must not be understood in isolation from the social and political conditions of a society. A society where right to fair trial is not available to every human without the discrimination of gender, class, ethnicity, caste, etc the single-handed emphasis on due process seems a little naïve. Even the right to due process also depends on the provision of other fundamental rights.

This is especially important in a society where miscarriage of justice has been frequently seen due to undue advantage of the powerful over the oppressed. Due process is not a privilege available to the oppressed in our society. And that cannot alone be provided by provision of this right to powerful criminals. Yes, this right must be available to everyone, but it must be supplemented with a constant demand of provision of other rights to everyone as well.

So, talk of a proper functioning of a system may be a one-sided story as the system may itself be situated in an oppressive society. That does not mean one is advocating abolition of all systems, but advocating a just system which serves all fundamental human rights to every human.

Second, there may be a gap between legal and moral spheres, but they do inform each other. Most of the time it is the moral choice of society which leads to alteration in the legal system. And this must not be seen as a bad influence.

Indeed, we must not make the legal system hostage to the whims of the public, but it is in the intersection of social realisation and legal reformation that an ideal of a just society can be established where the right of due process is part of a just legal system.

Safia Bano, "Due process and justice," The News. 2021-10-06.
Keywords: Social sciences , Civil society , Social realization , Human rights , Justice , Crimes , Culprits , Politics