Tag: human rights

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Human Rights

Trials are important but go to the High Courts for speedy human rights remedies

What is human rights lawyering? According to Sarim Naved, a Delhi-based advocate who has represented people accused in anti-terror cases, every criminal lawyer is in a sense a civil liberties lawyer: one could just as easily be framed and detained in a theft caseManish_goodhumanrightslawyering as in an anti-terror one. More specifically, though, he defines the contours of a human rights or civil liberties lawyer as one who is involved with particular kinds of political cases where individuals are targeted through the criminal law because of who they are – Adivasi, Muslim, or “Naxal” – as opposed to what they have done. The State’s power in such cases renders the entire system susceptible to bias, and this is where the role of the human rights advocate comes in, to ensure that there is a fair trial and the State does not monopolise the proceeding. He clarifies that despite a very common misconception that civil liberties lawyers hate the police, most do not, and do recognise that it is a very difficult and thankless job. He said that the truth is usually somewhere in the middle of both versions, and that the trial court is the best place to determine this.

Custodial torture presents one of the rare situations where the otherwise well laid out criminal procedure presents the victim with a choice of fora. Mr. Naved however, would always advise his clients to approach the High Court, rather than the trial courts. While a person who has been beaten or tortured by the police should ideally be able to file an FIR or approach the Magistrate and seek an inquiry, that is never done. The only option in such cases is to approach the High Court or an organisation like the National Human Rights Commission (“NHRC”).

SexualHarassmentAtTheWorkplaceMOOC2When I met him at his Hauz Khas Enclave office to speak about human rights lawyering in the trial courts, Mr. Naved said that his few interactions with the NHRC had all been fruitful. In one such incident, he was informed that the police had picked up a group of Rohingya refugees, who were protesting outside the office of the United Nations High Commissioner for Refugees (“UNHCR”). As he was in court and unable to visit the location, he called the NHRC, who then sent the police station a notice directing them to explain their action at a hearing which would be held for the purpose. On another occasion, a fax sufficed – he did not have to meet the Chairperson or even make a visit in person.

A preference for human rights remedies at the High Courts

The speed at which a remedy can be obtained from the High Court is an important reason why Mr. Naved prefers writ remedies. Any Division Bench in a high court can take interest in a case and direct the State to provide quick responses. The same level of urgency is not possible in trial courts, because they are governed by the Code of Criminal Procedure. The trial courts also have a very heavy workload. Mr. Naved suggested that there is an impression among lawyers that one will not get bail from the trial courts for the more serious offences. Most lawyers therefore, expect that the bail application at the trial court will be dismissed and therefore treat it as a formality before approaching the High Court. He admitted however, that he has no empirical evidence that the trial courts are actually ineffective and that his faith in the constitutional courts could just be part of a self-fulfilling prophecy with lawyers refusing to approach trial courts simply because they believe that they will not be able to obtain an effective remedy.

Being a relatively untested location for human rights issues, however, also means that fighting for these remedies at the trial courts requires imagination and courage of a certain kind. Says Mr. Naved, “When someone approaches you with a complaint of their rights being taken away or them being subject to various kinds of discrimination at the hands of the state, it requires a lot of courage to take a path that is not so well trodden.” Indeed, the likes of Dr. Kannabiran have shown that with persistence and conviction, it is possible to raise these questions at the trial courts, and obtain relief.

Skills on trial

Sarim Naved, human rights lawyer.
Sarim Naved, human rights lawyer.

That said, the importance of trial proceedings cannot be understated. “There’s only one place in this entire system where you can factually establish your case or disprove the prosecution case – and that is the trial court,” Mr. Naved said, adding that even for a completely innocent man, if the right questions are not asked at the trial court, the best of lawyers would have a hard time getting an acquittal from the higher courts, where it is only a matter of competing affidavits and the evidence is not really tested. Cases have been lost at the Supreme Court because the trial court lawyer was not very efficient. At the same time, there are notable success stories too: the acquittals of young men who were framed in terror cases described in a report by the Jamia Teachers Solidarity Association were all achieved at the trial courts.

The trial courts also require a particular set of skills—exactness, precision, the ability to think on one’s feet, and sheer determination to plough through the prosecution record, particularly in major cases such as those involving anti-terror laws, where, according to Mr. Naved, the prosecution relies on volume rather than quality of evidence. The attention to detail required while dealing with a very large amount of information, can be acquired only from a senior who has done it and will teach one to sift out relevant material from the huge volume of information, and then explain how to use it within the law. He credits his mentor, veteran advocate Nitya Ramakrishnan, for helping him develop these skills during his early days in the profession.

While defending an accused at trial, an advocate has to create a record that is favourable to the client by being present every day, making the correct decisions, and asking all the correct questions in the correct order. In contrast to an appellate setting, where the record is before the court and one knows what to say, the trial is a dialogue between the advocates, the judge, and the witnesses, and one does not know what answers to expect. The intimacy of the trial court setting also means that there is a simple level of humanity that exists there, unlike the structure of the higher courts which keeps a distance between the bench, the bar, and the client. Ultimately, Mr. Naved says of the trial courts, “It’s important to fight out battles there, because that’s the only place where everyone is face to face.”

(Manish is a legal researcher based in Delhi.)

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Human Rights

Good human rights lawyering at the trial courts

Manish_goodhumanrightslawyeringEven though India’s constitutional courts have played and continue to play a significant role in the development of the country’s human rights jurisprudence, they are only a small fraction of the judicial machinery. The trial courts, from the district and sessions courts to the courts of magistrates and civil judges, are the cogs that keep the system running. Often, claims are adjudicated locally to enforce statutory remedies and courts have to hear matters relating to bail, forest rights, labour rights, land, extra-judicial executions, caste atrocities, sexual violence, and many more subjects. Mostly, the violations are not egregious enough to necessitate the intervention of a constitutional court. Rather, they are the “everyday harms” that Galanter refers to (below). Moreover, the orders of the constitutional courts have little value till they are implemented at the grassroots level, for which trial courts play a critical role.

MarcGalanter_SupremeCourt

Advocates play a key role in ensuring litigants — particularly those is vulnerable positions — are able to access this system. To understand how human rights are enforced and adjudicated in India, it is important to understanding the crucial space of trial litigation, and for that, this column will survey the courts as well as the advocates who practice in this space — who they are, what they do, and what they can do better.

The fora

Section 30 of the Protection of Human Rights Act, 1993 empowers every state government to notify designated sessions courts as “Human Rights Courts” for providing speedy trial in cases of offences involving violations of human rights. As of 2011, however, these courts had only been operational in West Bengal. Elsewhere, human rights continue to be litigated before regular courts. Specific human rights claims may also be raised before the National Human Rights Commission, the State Human Rights Commissions, and quasi-judicial fora comprising officials of the executive such as sub-divisional magistrates and forest officers.

The advocates

KGKannabiran_competentlawyersforthepoor.jpg

The advocate’s role is critical in the effective enforcement of rights. While civil society activists and organisations play an important role in organising human rights movements, advocates are better placed to articulate causes in the language of the law and obtain judicial remedies. Intimately connected to the client and the cause, human rights advocates can also bring out the political in the law, using it both as a means of obtaining remedies as well as a rallying point for a cause. As Kannabiran points out, this often involves creating awareness around an issue and sensitising the courts about the problems that they may not be aware of. Human rights lawyering in this sense, is as much about creating and sustaining movements as about ensuring justice in individual cases. Both these aspects are anchored very strongly in values of justice and fraternity that flow from the Constitution and international human rights treaties such as the Universal Declaration of Human Rights. In this way, the process of human rights lawyering offers a way of reclaiming the law for us, the people. It uses a moral and ethical framework located within the Constitution of India that is also supported by international instruments.

Crystal Eastman, an American lawyer, was among the co-founders of the American Civil Liberties Union in 1920.
Crystal Eastman, an American lawyer, was among the co-founders of the American Civil Liberties Union in 1920.

Some of the most prominent examples of human rights lawyering internationally come from the American Civil Liberties Union (“ACLU”) in the United States. Through over eight decades of its existence, the ACLU has used a combination of strategic litigation and public mobilisation to fight for the protection of human rights guaranteed under the Constitution of the United States of America. A number of organisations have been involved in human rights lawyering in India, including the People’s Union for Civil Liberties, the Human Rights Law Network, the Andhra Pradesh Civil Liberties Committee, the Centre for Social Justice, the Chhattisgarh Mukti Morcha, the Extra Judicial Execution Victim Families Association and many more, both at the constitutional courts as well as at the grassroots level. Further, several independent advocates and human rights activists have been tirelessly — and often in the face of stiff opposition and even threats to their lives — advancing the cause of human rights lawyering at the trial courts across the country.

Better human rights lawyering at the trial courts

A number of issues are particular to human rights lawyering at the trial courts. The remedies available through trial courts are different from those available at the constitutional courts. Trial courts, for instance, do not have the power to issue writs but have important statutory powers under the Code of Criminal Procedure, 1973 and other statutes. The techniques and strategies of advocates at these courts and the challenges they face reflect these differences.
SexualHarassmentAtTheWorkplaceMOOC2As with lawyering anywhere, mentorship at the bar and the ability to network with other lawyers doing similar work, are invaluable to improving the standard of human rights lawyering at the trial courts. Institutional help in the form of NGOs and similar organisations, also make a difference to the extent and effectiveness of interventions made by human rights advocates. Documenting these practices through interviews with advocates involved in human rights lawyering at trial courts across the country, is expected to initiate useful conversations and expand the collective body of knowledge on this area.

While there is a fair amount of literature on human rights lawyering in terms of writ remedies and public interest litigation at the constitutional courts, the trial court space has not been fully mapped. The results of a pioneering study across India by the Alternative Law Forum as part of their Human Rights Lawyering Project are eagerly awaited. Given that the several human rights movements in India do not always engage with each other and that a “community” of human rights advocates does not fully exist, efforts to network them and document learning experiences are critical to the advancement of human rights lawyering. It is hoped that this column will bridge some of these gaps and contribute to the growth of human rights lawyering at the trial courts.
(Manish is a legal researcher based in Delhi.)

References

– B.N. Kirpal et al (eds.), Supreme but not Infallible: Essays in Honour of the Supreme Court of India (Oxford University Press, 2004).

– Jayanth Krishnan, Lawyering for a Cause and Experiences from Abroad, 94(2) California Law Review 575 (2006).

– Justice P. Sathasivam, Role of Courts in Protection of Human Rights, speech at the Tamil Nadu Judicial Academy (2012).

– K.G. Kannabiran, A One in a Century Rights Activist, 44(46) Economic and Political Weekly 8 (2009).

– Marc Galanter, The Study of the Indian Legal Profession, 3 Law and Society Review 201 (1968).

– Ruth Cowan, Women’s Rights through Litigation: An Examination of the American Civil Liberties Union Women’s Rights Project, 8 Columbia Human Rights Law Review 373 (1976-1977).

– Usha Ramanathan, Human Rights in India: A Mapping, (2001).

Categories
Human Rights

Not just false fire alarms: time to re-examine Indian laws that limit speech and expression

AparGupta_freedomofspeechA terse ruling by the United States Supreme Court in Shenk v. United States (1919) contains a powerful metaphor on legal arguments about the freedom of speech and expression. “The most stringent protection of free speech”, Justice Holmes said speaking for the Court, “would not protect a man in falsely shouting fire in a theatre and causing a panic”. Even though the Court has since moved away from it as a legal standard (Brandenburg v. Ohio (1969)), it continues to clearly illustrate the idea that the freedom of speech and expression is a conditioned right subject to constitutional limitations. For instance, the Supreme Court of India quoted Justice Holmes in the Ramlila Maidan Incident Case (2012).

Original limitations on free speech

The Constitution of India (“Constitution”) follows this scheme and provides a conditioned right to the freedom of speech and expression. Article 19(1)(a) provides for the fundamental right to freedom of speech and expression and Article 19(2) places restrictions on it. Known as “reasonable restrictions” today, they permitted the legislature to make enactments that fall within the grounds enumerated under it.

Article19(2)_1950 The ink had not dried on the Constitution when petitions were filed in various courts testing the extent of some laws that criminalised speech. While gauging the validity of such laws, the Supreme Court was called in to interpret Article 19(2).

Petitions challenging public order statutes

The Supreme Court interpreted the scope of Article 19(2) as it stood originally in two batches of petitions before it — Romesh Thappar v. State of Madras (1950) and Brij Bhushan v. State of Delhi (1950). In Romesh Thapar, the Court held parts of the Madras Maintaince of Public Order Act, 1949 to be beyond the ambit of the grounds contained in Article 19(2) and struck them down as unconstitutional. On similar reasoning, Brij Bhushan held pre-censorship orders issued under the East Punjab Public Safety Act, 1949 to be unconstitional. Justice Fazal Ali dissented persuasively in both cases, arguing that the enactments fall within the ambit of Article 19(2). H.M. Seervai, citing the presumption of constitutionality, has agreed with his views.

Some High Court judgments also did what the Supreme Court did. For instance, the crime of sedition and the Press (Emergency Powers) Act, 1931 were held unconstitutional. These petitions set the stage for the Parliament of India to consider the first amendment to the Constitution of India.

The 1st Amendment

On May 16, 1951, a mere sixteen months after the Constitution was adopted, a bill to amend it was introduced in the Parliament. The 1st Amendment Bill stated that “…Article 19(1)(a) has been held by some courts to be so comprehensive as not to render a person culpable even if he advocates murder or other crimes of violence” and sought to amend and expand Article 19(2). Importantly, the word, “reasonable” was inserted in the Bill after a Select Committee report was adopted on May 29. Article 19(2) was then amended by the Constitution (First Amendment) Act, 1951.

Article19(2)_AfterfirstAmendment

The Supreme Court was considerably accommodative in the constitutional appraisal of laws alleged to be in conflict with the amended Article 19(2). In Ramji Lal Modi v. State of Uttar Pradesh (1957), the constitionality of Section 295A of the Indian Penal Code, 1860, which contained the offence of insulting a religion, was challenged. The provision was in the news recently when publisher Penguin India claimed that the threat of prosecution for this offence was the reason it withdrew a book by Wendy Doniger.

Analysing it, the Court held that “the expression ‘in the interests of’ occurring in the amended Cl. (2) of Art. 19 had the effect of making the protection afforded by that clause very wide and a law not directly designed to maintain public order would well be within its protection if such activities as it penalised had a tendency to cause public disorder.” With the passage of time, there has been growing recognition that Article 19(2) as amended, was framed for the convenience of a police constable and not for the liberty of artists, writers, and citizens.

The necessity of reasonable restrictions

Justice Oliver Wendell Holmes Jr. did not enjoy false fire alarms.
Justice Oliver Wendell Holmes Jr. did not enjoy false fire alarms.

Even though the Supreme Court has not struck down many such laws as unconstitutional, it has often limited their operation by reading requirements into them. The scope of Article 19(2) has been considerably expanded and cases such as Romesh Thappar and Brij Bhushan are no longer good law but the judiciary has often seized upon the requirement of “reasonableness” in support of these limitations. Take the example of the cases on sedition, an offence contained in Section 124A of the Indian Penal Code, 1860.

The Supreme Court in Kedar Nath Singh v. State of Bihar (1962), while holding the provision to be constitutional, placed several limitations on it by holding that only those acts that had the intention or tendency to incite public disorder or violence would invite prosecution. The Court noted that it was clear that “criticism of public measures or comment on Government action, however strongly worded, would be within reasonable limits and would be consistent with the fundamental right of freedom of speech and expression.”

This sentiment can also be seen in the recent case of Pravasi Bhalai Sangathan v. Union of India and Others (2014), where it refused to issue directions for increased penal sanctions against ‘hate speeches’. The Court asked the Law Commission of India to study the applicable law and said, “It is desirable to put reasonable prohibition on unwarranted actions but there may arise difficulty in confining the prohibition to some manageable standard and in doing so, it may encompass all sorts of speeches which needs to be avoided .”

However, given that every few weeks, the Press highlights instances of the egregious abuse of these provisions, many have questioned the effectiveness of these court crafted doctrines and limitations.

The way forward

AseemTrivedi_BinayakSen
Assem Trivedi, Binayak Sen

The prosecutions of Binayak Sen, cartoonist Aseem Trivedi, and the Kashmiri students at Swami Vivekanand Subharti University present a mismatch in the doctrinal limitations imposed by Court precedent and the prosecutions that disregard them. These errors are corrected, if ever, through the appeals process but not before a punishment is visited in the form of pre-trial detention or even by the harassment caused by the prosecution itself. The Supreme Court’s precedent seeks to limit the application of such penal provisions but it is often disregarded at the stage of trial. This experience makes a strong case for their amendment or repeal. Though inconvenient given the current state of our polity, the proper forum for arguments about changing laws affecting speech and expression in India is the floor of the Parliament, not the Chief Justice’s court.

A concluding caveat on the arguments to amend Article 19(2) itself, rather than delete specific penal laws. Article 19(2) only provides an outer limit for legislation and not a constitutional imperative for the enactment of reasonable restrictions on speech. Today, the vast expanse of our penal laws not only prevent false fire alarms in cinemas but even criminalise the screening of movies. The time is ripe for the Law Commission of India to study how the laws that limit speech and expression are defined by their abuse and intolerance of dissent.

Apar Gupta is a partner at Advani & Co., and was recently named by Forbes India in its list of thirty Indians under thirty years of age for his work in media and technology law.

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Human Rights

The future of legal aid in India: Lessons from Mewat, Haryana

https://www.youtube.com/watch?v=zLNK6zEX1kU

What is the future of legal aid in India? What role do lawyers, law schools, and NGOs have in securing the rights and entitlements of citizens in rural India? Jane E. Schukoske, a firm believer in the potential of legal aid in alleviating poverty, is the CEO of the Institute of Rural Research and Development (“IRRAD“). Navneet Narwal is a Programme Leader at the same organisation and works with their Good Governance Now project, which has conducted structured training of citizens about their rights and entitlements in Mewat district in Haryana. They spoke with us about enhancing the current framework of the National Legal Services Authority and subordinate legal services authorities and the requirements placed on law schools to conduct legal aid clinics.

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Human Rights

Some observations about Islamophobia in the Indian legal system

BobbyKunhu_Islamophobia_terrorinvestigationsandtrials.jpgDuring the course of his research into Islamophobia in the Indian legal system, Bobby Kunhu has interviewed people accused of terror, investigating officers, prosecutors, and defense lawyers.

To understand Islamophobia he said, we need to first understand the history of the creation of India and Pakistan, the movement of upper caste Hindus to India during Partition, the transformation and growth of the Jan Sangh into the BJP, and three important decisions made by the Rajiv Gandhi government — unlocking the Babri Masjid, the Shah Bano case, and the ban on Satanic Verses. We also need to understand that Kerala and Kashmir are the only places in India where Muslims have political negotiating power.

Framing investigations as investigations into Islamic terror

Investigations into the blasts that followed the Bombay riots in 1992 were framed only as an investigation into the underworld and not into Islamic fundamentalism. After “9/11”, there is a global discourse of terror and Islamic fundamentalism and that provided the material for the rising Islamophobia in India.

Mr. Kunhu spoke about People’s Democratic Party (“PDP”) leader Abdul Nasser Mahdani, among the accused in the Coimbatore blasts case. He was acquitted after a decade in jail. During that period, several PILs and human rights organisations sought his release.

After that, he was arrested in relation to the bomb blasts in Bangalore in 2013, supposedly on the basis of evidence provided by Thadiyantavide Nazeer, a PDP member whom the Intelligence Bureau called one of the kingpins of the Indian Mujahideen. There are three main witnesses against Mr. Mahdani. His landlord at the house he rented after he was released from Coimbatore jail said that he saw Thadiyantavide Nazeer at the house when he went to collect rent. Later, he filed a complaint with a Magistrate in Ernakulam saying that he did not know what the paper in Kannada he had been made to sign by the Karnataka police was about. A plantation worker in Coorg says that he saw Mr. Mahdani visiting the plantation in Coorg for a meeting with Mr. Nazeer and others. The third witness is an RSS activist.

Judicial discomfort with the special cells of the police and the provisions used in terror charges

Usually, in terror-related cases, charges would be filed under Section 144A of the Indian Penal Code, 1860 (Sedition), Section 3(o) of the Unlawful Activities Prevention Act, 1967 (“UAPA”), and sometimes the Arms Act, 1959. The problem is that most of the lower judiciary is very scared of Section 124A and the UAPA. When it deals with special cells of the police like the Anti-Terror Squad, the Special Investigation Team, or the Crime Branch Criminal Investigation Department, the judiciary is very scared to grant any relief, or even follow procedure.

Unlawful arrests

Azamgarh, a town in Uttar Pradesh was named as the hub of terror recruitment across India after the Batla House encounters. Police picked up people, including many non-Muslim activists of the People’s Union for Civil Liberties. In most cases, they would not file an FIR and the people would not be produced before a Magistrate till civil society organisations raised a hue and cry about the missing boys.

In Hyderabad, immediately after the Mecca Masjid blasts happened, the police went on a rampage, picked up more than eighty Muslim boys from old Hyderabad, saying that there was a Lashkar-e-Toiba link. Nobody knew whether these boys had been arrested at all. The late K. Balagopal, a human rights coordinator, and others tried tracing them. A habeas corpus petition was filed in the Andhra Pradesh High Court and only then was an FIR lodged and the detained people produced before a Magistrate. All this happened at the pre-trial stage and the evidence was already being published in the newspapers.

SIMI was banned under the UAPA in 2002 after the Gujarat pogrom. Under the UAPA, a special tribunal has to be set up, every time a ban is notified. The tribunal has to be headed by a sitting judge of the High Court and examine all the evidence. The life of a ban is two years. Each time SIMI has been banned, by the time the tribunal comes to an end, the ban would be renewed and there would be a new tribunal. The third tribunal found that there was no evidence against SIMI. Soon after, the Union government notified SIMI as an unlawful agency. After the Batla House encounter, the government found it difficult to corroborate their claims about SIMI. The Indian Mujahideen was born at that point, and even though several books and articles have been written about it, no one has found anything outside of what the government has released through the Intelligence Bureau.

Strategic use of the media

Investigating authorities have strategically used the media to plant stories on terrorism. Praveen Swami detailed the Ishrat Jahan encounter on the front page of The Hindu — about how Ishrat Jahan met Pranesh Pillai and how they orchestrated a plan to assassinate Gujarat Chief Minister Narendra Modi. He kept carrying these stories till questions were raised about the legitimacy of the encounter.

(Hemangini Kalra prepared the transcript of Mr. Kunhu’s talk.)