Human Rights

Three women from smaller towns are breaking the mould and representing the poor and the socially backward


Over three decades after the Supreme Court recognised and encouraged the use of the judiciary to enforce remedies against the state, Sarojani Tamshetty, 29, an advocate practising in Solapur, is using Section 133 of the Code of Criminal Procedure, 1973 (“CrPC”) to ensure that basic rights, including the rights to drinking water and sanitation, are not denied to the citizens of her city. Sections 49 and 50 of the Maharashtra Municipalities Act, 1965 obligates every municipal corporation to provide drinking water and sanitation to citizens. Solapur had been at the receiving end of its municipality’s inaction in this regard. The urban poor, doubly hit by their inability to access municipal offices, were most severely affected. Ms. Tamshetty stepped in and filed a complaint before the jurisdictional magistrate under Section 133 of the CrPC. An order was issued to the municipal authorities and the municipality eventually took action and commissioned water supply and sanitation projects.

Using legal notices to secure rights for the urban poor

Manish_goodhumanrightslawyeringIn non-municipal areas, the district administration and revenue authorities wield significant power. While the ordinary method of seeking redress from such authorities is by submitting applications and representations, it leaves the question of what to do in case the authority in question fails to respond. Ms. Tamshetty came up with a unique way of resolving this. After submitting several representations to the Solapur district administration for the implementation of the Sanjay Gandhi Niradhar Anudan Yojana (a scheme for provision of financial assistance to destitute persons) and not receiving any response, she issued a legal notice to the District Collector. The notice resulted in funds being sanctioned for the scheme and the appointment of a committee for receiving applications and disbursing the amount.

Legal notices have also been used to good effect by Salma Bano, a 26-year old lawyer practising in Nabarangpur, Odisha. An unscrupulous contractor had illegally confiscated the job cards of a few poor labourers under the National Rural Employment Guarantee Act, 2005 (“NREGA”). After they approached her, Ms. Bano issued a legal notice to the contractor, directing him to return the cards. These cards were returned to their rightful owners.

Litigating for victims of domestic violence

SarojaniThamshetty_humanrightsadvocateShe also handles a number of cases of domestic violence, where besides providing legal assistance, the lawyer is often required to extensively counsel her client, who may also be in need of medical assistance. In most of these cases, the victims seek an end to the violence and a means of sustenance, but do not wish to initiate criminal proceedings against their violent husbands. The Protection of Women from Domestic Violence Act, 2005 is a useful tool in such cases, for claiming a variety of civil remedies including protection orders, residence orders, and maintenance. The advocate also has to coordinate with protection officers for getting these orders implemented. Ms. Bano, who hails from an educationally backward area and a socially conservative community, takes pride in convincing members of her community to come out of their conservative mindsets, through her use of the law for making claims that have contributed to the advancement of her community. Says she, “The same people who opposed me earlier, now come to me seeking advice with their problems.

For Begum Rehana, the path to becoming a lawyer started at home – out of her own lived experience with domestic violence. Having gone through the difficulty of finding a supportive and affordable lawyer, especially in the conservative neighbourhood of the Old City in Hyderabad, she vowed never to be dependent on anyone again, and began studying and later practising law. Today, she enables several poor women, deserted by their husbands, to claim their legal rights to maintenance and residence. The Muslim Women (Protection of Rights on Divorce) Act, 1986, as interpreted by the Supreme Court, obligates a husband to make reasonable provision for maintenance of his wife (for her entire lifetime) within the iddat period (approximately three months from the date of the divorce). Ms. Rehana has used this law to good effect, helping several women obtain maintenance from their husbands. In circumstances where the husband is unable to pay, this responsibility ultimately falls on the State Wakf Board. In some such cases, Ms. Rehana has also obtained orders from a family court, directing the Wakf Board to pay maintenance to the destitute woman. The matter does not end there. The advocate also has to repeatedly visit the office of the Wakf Board and file right to information applications to ensure that the amount is finally disbursed to the woman.

SalmaBano_humanrightsadvocateLitigating cases of domestic violence or maintenance involves a fair amount of client counselling, especially during the trial at the stage of cross-examination. Often, women in such situations are already overwhelmed by their circumstances, and hence it is extremely important for an advocate to speak to the client and build up her confidence, so that she is able to withstand gruelling cross-examination by the opposing counsel. The most important thing, according to Rehana, both legally and psychologically, is to demand maintenance as a matter of right rather than charity.

Spreading awareness, filing RTI applications

Ms. Rehana also works with a local women’s collective, Shaheen, on spreading awareness in her community, especially among women, about access to government schemes and entitlements, such as scholarships, ration cards, and other government schemes providing financial assistance to women who have been victims of violence. Other means of enabling people to claim their entitlements under various schemes or legislations include using the Right to Information Act, 2005 to get information about the implementation of schemes and budgetary allocations. Generally, Ms. Rehana’s experience has been that officials are sometimes uncooperative or reluctant to disclose information but tend to become responsive when proceedings are initiated before the appellate authority or the state information commissions.

Overcoming the absence of role models

Ms. Tamshetty, Ms. Bano, and Rehana also work with the district legal services authority, as empanelled lawyers or otherwise. This gives them exposure to a wide range of legal issues faced by people who are socially and economically backward.

As with any other profession, litigation is also gendered. All of them report having encountered hurdles and obstacles in their career path, ranging from opposition from their families to sexist behaviour from their male colleagues. A major issue is the absence of senior female advocates at the district court level, for mentorship or just as role models. Another obstacle is that at the district court level, women are discouraged from taking up criminal litigation because it is “not suitable” for them, and advised to stick to the civil side instead. Institutional and organisational support for grassroots lawyers however, is available in the form of fellowships, including the Human Rights Law Defenders program by the Sahyog Trust, the Young Lawyers for Justice fellowships by the Committee for Legal Aid to Poor, and the Lawyers For Change fellowships by Econet and Centre for Social Justice. Ms. Tamshetty, Ms. Bano, and Ms. Rehana, have availed of one or more of these fellowships, and recognise their great value as learning resources, especially in terms of enabling them to interact and learn from other advocates doing similar work in other parts of the country. Given that human rights lawyering is not commercially remunerative, such fellowships also provide useful financial support.

(Manish is a legal researcher based in Ahmedabad.)

Human Rights

In the ‘red corridor’, human rights advocates fight misuse of stringent laws

Manish_goodhumanrightslawyeringThe difficulty of being a human rights lawyer is amplified in areas where the State is engaged in conflict with extremists or other organisations. Surendra Gadling is a Nagpur-based advocate who has successfully defended individuals accused of being Naxalites. Earlier this year, he was instrumental in securing the acquittal of Sudhir Dhawale, a Dalit activist and intellectual who was arrested by the police in 2011 for alleged Naxal links. Having dealt with extra-judicial killings and false cases during two decades of practice, he said that a major problem with working in conflict zones is that since their location is predominantly rural or in forested areas, victims of human rights violations face great difficulty in approaching lawyers. He also agrees with the approach advocated by Rajvinder Singh Bains, a human rights advocate he considers a good friend and colleague, of filing criminal complaints against State officials in cases of extra-judicial killings.

Manoranjan Routray, a young advocate practising in Koraput in Orissa, agrees. Many of those alleged Naxals are either poor adivasis or activists and intellectuals who have spoken out against the State, which in retaliation slapped them with the draconian provisions of the Unlawful Activities Prevention Act, 1967 (“UAPA”) and other similar laws invoked to ensure that the arrested person does not get bail easily. The police also use Section 3 of the Criminal Law Amendment Act, 1961 and Section 25 of the Arms Act, 1959 on a regular basis. He narrated the story of the Chasi Mulia Adivasi Sangh (“CMAS”), an organisation of tribals that came together to fight for land and forest rights. On suspicion of a few members having Naxal links, the Government of Odisha banned the entire organisation and began a systematic witch-hunt against its members. Most of those who were picked up or detained in this manner were poor adivasis who had very limited access to legal aid. Mr. Routray was representing some of them. This was only an indicator of the State’s larger effort to silence movements of assertion of identity and resistance by adivasis, who are constantly suspected and accused of supporting the Naxals even in the absence of any clear evidence.

KoraputDistrictAndSessionsCourtOn an earlier visit to Koraput, Mr. Routray had taken me to the district court there, which is a far cry from the swanky interiors of the courts in Delhi and Bangalore. Besides the abysmal infrastructure, the place had a generally depressing feel. The overwhelming presence of armed police personnel created an intimidating atmosphere even for an outsider like me. One can only imagine what undertrials and lawyers would have to go through, visiting this place on a regular basis.

Besides the lack of basic infrastructural facilities, courts in such locations tend to be less inclined to grant bail, when stringent provisions under national security legislations are invoked. Earlier, the Terrorist And Disruptive Activities (Prevention) Act, 1987 and then the Prevention Of Terrorism Act, 2002 were used for this purpose. After their repeal, the UAPA has been invoked, along with the occasional provision from the Indian Penal Code, 1860 such as Section 124A, which deals with sedition.

Surendra Gadling
Surendra Gadling

Another major issue in conflict zones is that since there are very few lawyers in these areas to deal with the large number of UAPA cases, they are heavily overburdened. The police also file a large number of cases against individuals. Mr. Gadling cited one instance where 101 cases were filed against a single individual and other cases where entire villages have been accused. Consequently, lawyers in this field get several matters on a single day and often have to resort to improvisation and innovation in their arguments across several cases since it is not possible to work on each case in a planned and systematic manner.

The extent to which the law is misused is evident from the fact that in the past ten years, there has only been one conviction in the whole of Vidarbha – that of Vernon Gonsalves in 2013 (which is being appealed in the High Court). The fact that a majority of these cases are false is also illustrated by the fact that there is very little evidence that the prosecution produces at the time of the trial, barring confessional statements of other persons in custody, which usually does not stand up to legal scrutiny. However, by the time an acquittal is secured, the individual has already spent a considerable amount of time in jail, which leaves him demoralised. Thus, the law is used to terrorise and intimidate not just activists working in the field, but also people who might be interested in and sympathetic to the cause. Likewise, lawyers and activists are often subject to direct or indirect intimidation and threats by the police. While neither Mr. Galding nor Mr. Routray had been directly threatened, they admitted that they were very often working in an atmosphere of great tension and pressure. The police have made general statements warning lawyers and made indirect threats through their clients.

(From left to right) Soni Sori, Sudhir Dhawale, Binayak Sen - victims of police excesses in the red corridor.
(From left to right) Soni Sori, Sudhir Dhawale, Binayak Sen – victims of police excesses in the red corridor.

Both Mr. Gadling and Mr. Routray, who are practising in the towns they grew up in, said that their entry into human rights lawyering was motivated by their activism during their student days, during which they became aware of pressing socio-political issues around them. Mr. Routray also cites as an inspiration, the mentorship he received from his senior, Nihar Ranjan Patnaik, an experienced advocate who also led the local bar association. While it is important to try and be self-financed, financial support is also available in the form of donations from well-wishers towards individual cases, as well as through informal networks with organisations like ActionAid which work in these areas.

In situations like these, where one is constantly under threat, solidarity is critical. There is an informal network of lawyers working in these conflict zones, particularly Vidarbha, Chhattisgarh, Jharkhand, Odisha, and southern Madhya Pradesh. This network is often called on to help in situations where the same individual is charged with offences in two or more states, which is often the case, given that the so-called ‘red corridor’ extends across state boundaries, as do police efforts against it. There are also a few senior advocates in some high courts and the Supreme Court who maintain contact and provide help when required. Indeed, the role of the advocate in conflict zones is more political than legal. It is a statement against the State’s attempt at silencing dissent and more lawyers need to take up cases in these areas.

(Manish is a legal researcher based in Ahmedabad.)

Human Rights Supreme Court of India

Where process is punishment: Supreme Court shows how additional police powers in terror laws encourage injustice

ShadanFarasat_SupremeCourtofIndiaOn July 18, the Supreme Court delivered a judgment releasing from custody, twelve men who had been accused of orchestrating the blasts in Surat in 1993. Justices T.S. Thakur and C. Nagappan delivered the decision titled Hussain Ghadialy and Others v. State of Gujarat in Criminal Appeal No. 92 of 2009. The judgment itself does not point out the period for which the accused had been incarcerated. Given that the blasts happened over twenty-one years ago, it would be reasonable to presume that the accused had spent over fifteen years in custody for an offence that the Supreme Court has now determined they did not commit.

Justices Thakur and Nagappan of the Supreme Court of India.

Speaking for the Court, Justice T.S. Thakur held that the under Section 20A of the now-lapsed Terrorist and Disruptive Activities Act, 1987 (“TADA”), the approval of the District Superintendent of Police was necessary before any information about the commission of an offence under the provisions of TADA can be recorded. In this case, no such permission was obtained. All proceedings under TADA therefore, stood vitiated. The only evidence against the accused was their confessions before the police, which could be admitted as evidence under Section 15 of TADA. Since the provisions of TADA were not applicable however, the convictions could not be sustained without independent evidence.

In another recent judgment, that of A.S. Ajmeri v. State of Gujarat, Criminal Appeal No. 2295-96 of 2010, delivered on May 16, another bench of the Supreme Court released on very similar grounds, the accused under the Prevention of Terrorism Act, 2002 (“POTA”). In this case too, the police force involved was the  Gujarat Police and the Court passed severe strictures against them.

LawSchoolInductionThese two cases really highlight the severe damage caused by the provisions of these draconian laws. Far from making the apprehension and conviction of actual terrorists more credible, these provisions gave the police another tool to frame innocent individuals only to show that the case has been solved, even as the actual perpetrators of such violence remain un-apprehended.

The more recent case before the Supreme Court was one of the many where the sole basis for conviction in a TADA case was the confession before the police. Under the normal criminal law, such confessions are inadmissible as evidence. In most of these cases, the designated TADA courts have given too much leeway to the prosecution and convicted the accused only on the basis of a confession before the police, even though there were serious irregularities in the initiation of proceedings under TADA or in the recording of the confessions, which are very often fabricated. Under TADA, the first and only appeal lies to the Supreme Court. By the time the Supreme Court finally corrects these errors and acquits the accused, more than a decade has passed. The process itself becomes the punishment.

While TADA itself has been repealed, many of the questionable convictions made under this law are still pending appeal before the Supreme Court. Even if the accused are released in these appeals, given the absence of jurisprudence in India over compensation for wrongful or malicious prosecution, they are usually not granted any compensation for the crucial years of their life that they spent in custody. After the years of incarceration, most of the accused are just happy to be out of jail and reunite with their families.

policeindiaThis experience with TADA and POTA shows that draconian provisions giving additional powers to the police, especially in relation to the admissibility of evidence is, in the absence of genuine police reform, likely to encourage an already compromised police force to misuse them to frame innocent civilians while the real perpetrators roam free. The solution lies in having a more professional and uncompromised police force that is able to honestly investigate and solve both regular crimes and terrorism cases alike.

Shadan Farasat is an Advocate-on-Record at the Supreme Court of India.


Supreme Court of India

Delay in deciding mercy petitions as a ground for commutation – did the judiciary exceed its brief?

RichaKaur_myLawThe death sentence, one of the punishments provided under Section 53 of the Indian Penal Code, 1860 is increasingly becoming redundant. By an order dated January 21, 2014, the Supreme Court commuted the death sentence of thirteen convicts on the grounds of inordinate delays in deciding on the mercy petition.

Under Article 72 and Article 161 of the Constitution of India, the President and the governors respectively, have the power to “grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence”. Durga Das Basu has stated that the object of the power of pardon by the President of India was to “correct judicial errors for no system of judicial administration can be free from imperfections.” This power however, instead of correcting judicial lacunae, has prevented victims from receiving true justice by allowing politics to affect decisions.

The President and the governors have to exercise their power to pardon on the advice of the Council of Ministers. Since the power has not been exercised expeditiously, a large number of mercy petitions are pending with the President of India. This callousness has resulted in unreasonable delays in the execution of the death sentences. Death row convicts languish in jail for more than twenty years under constant fear of death and the subsequent execution of the death sentence is cruel and barbaric.

LawSchoolInductionThe procedure commences with the filing of a mercy petition with the President under Article 72 of the Constitution. The petition is sent to the Ministry of Home Affairs in the Union Government (“the Ministry”), where the judicial division has been tasked with giving its recommendations on the petition in consultation with the concerned sate government. Thereafter, the mercy petition, along with the Ministry’s recommendations, is sent to the President’s Secretariat for a final decision. Sometimes however, even after the Ministry has made its recommendations, the President’s Secretariat does not act on the petition for an inexplicably long time.

Afzal Guru was convicted for attacking the Parliament of India in 2001. The Supreme Court confirmed his death sentence on August 4, 2005 and the date for his execution was fixed for October 20, 2006. His wife filed a mercy petition on January 4, 2006 before the President who sent it to the Ministry of Home Affairs on October 4, 2006 for its recommendations. A curative petition filed by Mr. Guru in Supreme Court was disposed of on January 12, 2007. Shivraj Patil, who was the Home Minister of India at that time, while responding to a question about Mr. Guru’s mercy petition in the Rajya Sabha said, After having seen the figures for last ten years, I would like to inform you that no mercy petition has been decided before six years, seven years….. After eight long years, the President rejected the mercy plea on February 3, 2013. Mr. Guru was executed on February 9, 2013. In this entire process, a lot of time is spent in sending the file from one department to another and vested interests and political considerations influence the final decision.

The Supreme Court’s January 21 order came in the case of Shatrughan Chauhan and Another v. Union of India and Others, 2014 (1) SCALE 437, where it framed guidelines for safeguarding the interest of death row convicts. Fifteen death row convicts had filed a writ petition seeking relief against the alleged infringement of their fundamental rights on account of the executive’s failure to dispose of mercy petitions within a reasonable time. Allowing the writ petitions and commuting the sentence of death of the petitioners to imprisonment for life, the Supreme Court observed that the right to seek mercy under Articles 72 and 161 of the Constitution is a constitutional right and not at the discretion or whims of the executive. Therefore, “when the delay caused in disposing the mercy petitions is seen to be unreasonable, unexplained and exorbitant, it is the duty of this Court to step in and consider this aspect. Thereafter, the Supreme Court, in February 2014, asked the government to include delay as a criterion in deciding the mercy petition of a death row convict. The Court said that “the clemency procedure “provides a ray of hope” to the condemned prisoners and their family members for commutation of death sentence to life imprisonment. Therefore, the executive should step up and exercise its time-honoured tradition of clemency power guaranteed in the constitution one way or the other within a reasonable time.

The Central Government is likely to file a curative petition against this decision of the Supreme Court. In a more recent decision, Navneet Kaur v. State of NCT of Delhi and Another, the Supreme Court commuted the death sentence of Devender Pal Singh Bhullar, a Khalistani terrorist accused in the 1993 blasts in Delhi, to life imprisonment both on the ground of inordinate delay of eight years in the disposal of the mercy petition and on the ground of insanity. As a result of such leniency, a number of hardcore convicted offenders including the assassins of Rajiv Gandhi and close aides of the forest brigand Veerappan have been freed from the gallows. This has resulted in injustice to the victim or his family members.

The research done by Bikram Jeet Batra, an independent lawyer and researcher, shows that until 1980, mercy petitions were decided within a minimum of fifteen days and a maximum of ten to eleven months. From 1980 to 1988, the time taken for the disposal of mercy petitions gradually increased to an average of four years. Now, we even see delays that extend up to twelve years.

Judicial review of mercy petitions

The Supreme Court has been of the opinion that even though the power of pardon exercised by the President and the Governor is above judicial review, its manner of exercise is certainly subject to judicial review. In Epuru Sudhakar and Another v. Government of Andhra Pradesh and Others, (2006) 8 SCC 161, the Court listed the grounds on which a decision under Articles 72 or 161 may be judicially reviewed. They include:

a. Whether  the order has been passed without application of mind,

b. Whether the order is mala fide,

c. Whether the order has been passed on extraneous on wholly irrelevant considerations,

d. Whether relevant materials have been kept out of consideration, and

e. Whether the order suffers from arbitrariness.

The courts therefore, do not interfere with the decision of the executive on merits but retain the limited power of judicial review to ensure that all the relevant materials are considered before the decision is made.

After Shatrughan Chauhan therefore, the question that arises is whether the judiciary exceeded its power of judicial review. The pardoning power conferred on the executive by the Constitution is a discretionary power and the judiciary seems to be curtailing it and substituting it with its own discretion. The solution would be to prescribe a time limit within which the executive ought to decide the mercy petition.

Richa Kaur is part of the faculty at

Human Rights

File criminal complaints and not writ petitions in extra-judicial execution cases – Rajvinder Singh Bains

Manish_goodhumanrightslawyeringHuman rights lawyers are not always advocating for the defence in criminal cases. There are often situations, such as extra-judicial killings, where the state has exercised power with impunity and a human rights lawyer has to prosecute in order to secure justice. This switching of roles is familiar to Rajvinder Singh Bains, an advocate who has, for almost thirty years, fought for the families of the victims of extra-judicial executions in the Punjab – the so-called “disappearances” of the 1980s. When I met him at his Chandigarh residence on a Sunday morning in May, he was still euphoric from having secured, a couple of days earlier, a conviction in the Kuljeet Singh Dhatt disappearance case.

A challenging environment to work in

Mr. Bains fought his cases in one of the most challenging situations possible for a human rights lawyer. During the disturbances of the late 1980s and the early 1990s, Punjab presented an atmosphere of continuous hostility and danger. According to Mr. Bains, lawyers defending people accused of offences were picked up and killed. The judiciary too, was completely unresponsive and Mr. Bains told me how at the High Court, habeas corpus petitions were summarily dismissed without even notice to the state. In fact, the judges would reprimand the petitioners for interfering in law and order issues. Warrants for the arrest of police officers were returned unserved and without any follow-up action. The situation at the trial courts was often far worse, with judges often being threatened and intimidated to the point where only the prosecution’s voice was heard in the courtroom. Most cases were registered under the draconian Terrorist and Disruptive Activities (Prevention) Act, 1987 (“TADA”) and trials were held in jail, where most trial court lawyers would not even enter. The few that did visit jails were threatened and practiced law in spite of the risk to their lives. All of them, Mr. Bains told me, eventually became successful lawyers.

Lawyers in this situation, he said, must be prepared for anything from anonymous abusive calls to death threats, mentioning that his own father was threatened with phone calls warning of danger to his son. In certain cases, as in Punjab, the Supreme Court has stepped in and provided protection for lawyers arguing human rights cases, which is very helpful.

The modus operandi of the police in Punjab was to pick up persons whom they suspected of being involved in terrorist acts or disruptive activities, torture, and kill them extra-judicially. The police would then target their “support groups” of friends and family with false TADA cases even though these people were not involved in any way. This, Mr. Bains said, was the reason for a high number of acquittals in cases under TADA. The police often did not have even a shred of evidence against those that they accused. Mr. Bains narrated an incident where he pointed out to a judge in court that those listed as “proclaimed offenders” in a TADA case were in fact all dead. The judge ordered an investigation and the prosecution of the police officer involved, but the Supreme Court later quashed the case on unrelated grounds.

Born into human rights lawyering

Even these challenging circumstances did not demoralise Mr. Bains. Rather, they contributed to his learning curve. Originally trained as an engineer (“because the engineering college was right next door”), he started taking evening classes in law.

Rajvinder SIngh Bains
Picture courtesy: Arjun Sheoran

He was no stranger to the profession. His father was Ajit Singh Bains, a judge who, after retirement, founded the Punjab Human Rights Organisation and devoted himself to the cause of securing justice for the victims of the large-scale human rights violations taking place in Punjab. Mr. Bains started out in 1985 by assisting his father, counseling the victims and their families who approached the organisation. Eventually, he began arguing cases himself and thus began a career that has continued for almost three decades. The Dhatt disappearance case in which he secured a conviction recently, was also the first case that he argued in court.

Criminal complaints and the importance of evidence

The case was about the disappearance of a person after the police had picked him up. The prosecution’s version was that he had escaped from police custody. In the initial stages of an enquiry conducted by a retired judge, he filed an application to inspect the site where the victim had allegedly “escaped”. The police would protest and object at every stage, but with a great deal of difficulty he managed to obtain an order and inspect the site. It was a forty-foot deep gorge surrounded by a sandy area where it would be impossible for a handcuffed person to escape. Mr. Bains said that the police would try hard to suppress evidence if they knew that there was nothing in their favour.

Evidence provides an enormous advantage at the trial courts because they are bound by the evidence led – which in such cases, is likely to be stronger on the side of the victim rather than the state. In hindsight, Mr. Bains said, particularly after observing the Gujarat prosecutions, he should have filed criminal complaints in all cases, rather than writ petitions.

Mr. Bains would now advise his clients against approaching a superior court at the initial stage because of the discretion vested in them. The danger of this discretionary power at the higher courts is that it goes by public opinion – and as a victim, there is generally a much higher chance of success on the basis of evidence. Even in a politically polarised situation, the most practical remedy is to file criminal complaints, prosecute them, carefully collect evidence, and present it before court. While these cases start very slowly and may initially give the appearance that there is no chance of success, most of them in fact do succeed. Of course, these cases are largely dependent on strong witnesses, and there is a need to have witness protection programmes, particularly in cases against state officials. Mr. Bains pointed out that in the cases that he took up, most of the witnesses were extremely intimidated because they were from rural backgrounds and the accused were very senior police officers.

Financing a human rights practice amidst political polarisation

Working in a politically polarised situation also comes with its own dangers.  Funding is a sensitive issue while arguing human rights cases. Mr. Bains cautions against blindly accepting foreign funding, narrating incidents where traps were laid by state agencies to implicate human rights lawyers and organisations on spurious grounds. Indeed, a recent report by the Intelligence Bureau once again raises the bogey of foreign-funded NGOs indulging in ‘anti national activities’ under the garb of human rights. In addition, while some victims’ families may be rich and able to support the lawyer financially, a majority of them are not in a position to do so. As a lawyer, one way of supporting a human rights practice is to cross-subsidise it by taking up some commercial cases as well. It took Mr. Bains more than a decade to start earning. In his initial days, it was service law and commercial matters that subsidised his human rights practice.

His advice to young lawyers is to be positive and find a good mentor. Human rights lawyering requires a lot of dedication to be able to tirelessly pursue cases for twenty years, and continue the fight for justice. It is also a continuous learning experience. “Even after 30 years, I don’t feel like a master”, he said. While the profession demands a lot of commitment, it is also very empowering and positive, with good seniors who constantly offer encouragement to young lawyers.

(Manish is a legal researcher based in Delhi.)